There’s no two ways about it – good teamwork is essential to your business.

Why? Because a team of employees who work well together will not only be more productive, they’ll also be happier in their jobs, communicate more effectively, and be less likely to leave your organisation.

I can imagine what you’re thinking… how do I find the time to focus on teambuilding when there’s barely time to get everything done as it is?

But you need to remember that investing in team building strategies doesn’t have to be a strain…

There are a number of simple things you can do that will start the ball rolling.

For example:

• Try scheduling regular team staff meetings. It sounds almost too simple doesn’t it? But remember – giving your employees the chance to meet and share their thoughts on a regular basis helps them to feel part of a common goal.
• Put a mentoring system in place. You can do this by starting a buddy system or by pairing new and experienced employees together on certain tasks.
• Encourage after-hours events and get-togethers. For example, you could send around an email suggesting Friday night drinks at a local bar and offer to shout the first round.
• Arrange a specific team building activity, like a business sporting day, or a trip away.

Remember, investing some time and effort in team building will not only benefit your employees, it will also improve your business’ bottom line.

Until next time…

Claire Berry
Workplace Bulletin

And now over to our editor-in-chief Charles Power…

Why it’s hard to appeal an unfair dismissal decision under the Fair Work Act
By Charles Power

Editor-in-Chief, Employment Law Practical Handbook

Fair Work Australia (FWA) has confirmed that it is harder to appeal an unfair dismissal decision under the Fair Work Act than it was under Work Choices.

If you (or an employee for that matter) do not agree with a decision made by FWA in relation to an unfair dismissal claim, you can appeal the decision to a Full Bench (i.e. 3 members) of FWA.

But it’s not a simple as that – the Fair Work Act also introduced two new hurdles that you must satisfy before a Full Bench will determine an unfair dismissal appeal.

1. Firstly, the Full Bench needs to be satisfied that it is in “the public interest” to determine the appeal. (See below for more information).
2. Secondly, if you suggest that FWA made a mistake in coming to their decision due to an error of fact, then that error in fact must be significant.

In a recent decision (GlaxoSmithKline Australia Pty Ltd v Makin [2010]), FWA highlights these new requirements.

In the case, a pharmaceutical company was ordered to reinstate a warehouse employee they had dismissed for knowingly breaching OHS procedures, despite having received training about the procedures 6 days earlier.

FWA found that while the employer had a valid reason to dismiss the employee, the dismissal was harsh taking into account such matters as the employee’s unblemished record and the fact that other employees had also breached the procedures.

The company then lodged an appeal with FWA about the decision.

When considering whether they would determine the company’s appeal, the Full Bench applied the “public interest test”.

In applying the “public interest test” the FWA Full Bench said they considered:

• whether the matter raised issues of importance and general application;
• whether differences in FWA decisions meant that guidance was required; and
• whether the decision was so wrong that it would reflect badly on FWA if it was not overturned.

The FWA full bench determined the appeal was not in the public interest, so they refused to overturn the decision.

For more information on unfair dismissal check out chapter U1 Unfair Dismissal in your Employment Law Practical Handbook.

Not yet a subscriber to the handbook? Click here for more information.

Regards,

Charles Power
Editor-in-Chief
Employment Law Practical Handbook

With all the changes the Fair Work Act has made to dismissal legislation, you’d certainly be forgiven for being a little wary about dismissing an employee these days.

Because the fact of the matter is, even if you think a dismissal is cut and dried, there’s a good chance it’s not…

Just take this recent case as an example:

A tow-truck driver was dismissed after telling his employer he no longer wanted to be a part of an out-of-hours roster system he had agreed to for years.

The employee was awarded $22,408 in compensation. (Glenn Westblade v Harvey & Dunn Pty Ltd T/A Albury Auto Body Repairs [2010] FWA4961 (21 July 2010).

So what can you learn from this case?

In short, you need to make sure you have covered all your bases before you dismiss an employee.

For example, before dismissing an employee, you should always ask yourself the following three questions:

1. Do you have a valid reason for dismissal? Make sure you have a sound reason for the dismissal that you can prove.
2. Have you demonstrated procedural fairness in your decision to dismiss? This is where the employer in the case above went wrong – you must ensure you follow all the proper procedures when dismissing an employee.
3. Is dismissal a proportionate punishment in the circumstances? Ask yourself if the ‘punishment’ of dismissal fits the employee’s ‘crime’.

Need more information on dismissal? Check out the Dismissal and Unfair Dismissal chapters in your Employment Law Practical Handbook.

Not yet a subscriber to the handbook? Click here for more information on how it can help you manage your employees effectively and legally.

Until next time…

Claire Berry
Workplace Bulletin

Late last week, the federal government announced that it has made some important changes to the Small Business Fair Dismissal Code Checklist.

And yes, these changes will affect you.

Why? Because from now on, before you dismiss an employee, you will need to follow the new version of the checklist to make sure you haven’t dismissed them unfairly.

The changes to the checklist include the addition of two new questions, which will prompt you to:

1. Check if a redundancy is genuine (if you are dismissing an employee for reasons of redundancy). It will ask you to make sure you have complied with any applicable redundancy consultation requirements and considered whether the employee could be redeployed within your business or a related business.
2. Check whether you have complied with any employee requests for a support person to be present.

You can access a copy of the updated Small Business Fair Dismissal Code Checklist here.

For more information on the dismissal process, check out the Dismissal and Unfair Dismissal chapters in your Employment Law Practical Handbook.

Not yet a subscriber to the handbook? Click here for more information on how it could help you.

Until next time…

Claire Berry
Workplace Bulletin

And now over to our Editor-in-Chief Charles Power…

Continues below…

2 ways to make sure employees on annual salaries don’t dispute additional hours
By Charles Power
Editor-in-Chief, Employment Law Practical Handbook

If you have employees on annual salaries, you no doubt expect that salary to cover all hours that they work. The last thing you want is for your employees on annual salaries to try and claim payment for additional hours of work!

Well here are two ways you can ensure this won’t happen to you:

1. Make sure you specify in your employees’ contracts that their salary is paid for all ordinary hours worked as well as any other hours that are required to complete the requirements of their position.
2. If the role will require the employee to work more than 38 a week on a regular basis, make this clear in their employment contract.

Make sure you’re careful though – if an employment contract does not set out an averaging period for ordinary hours of work, it may be difficult for you to request the employee to work additional hours.

Why? Because if you direct an employee to work additional hours, they are well within their rights to refuse on the grounds that it is an unreasonable request.

For more information on reasonable additional hours, check out chapter M3 Minimum Conditions of Employment – Hours of Work in your Employment Law Practical Handbook.

Not a subscriber? Click here for more information.

Regards,

Charles Power
Editor-in-Chief
Employment Law Practical Handbook

Last week, a rather interesting case caught my eye…

It involved Australian fashion chain Cotton On, who admitted to failing to pay 3289 employees for attending training sessions and staff meetings outside of work hours over an 11 month period in 2008.

The company voluntarily paid back $278,000 to the under payed employees and will now report to the Fair Work Ombudsman (FWO) each year for the next three years about the wage rates and entitlements it pays its employees.

Cotton On will also display A3 sized statements apologising for the underpayments in each of its stores for the next 30 days and put all of its HR managers through a workplace relations compliance program.

So why did this particular case catch my eye, I hear you ask?

Because it draws attention to a common misconception held by many employers…

Continues below…

How to avoid underpaying your employees

Under the Fair Work Act, you are only required to pay an employee overtime if an entitlement arises under a modern award, enterprise agreement or employment contract.

However, many employers forget that even if an employee is not entitled to overtime under the Fair Work Act, they must still be paid for each hour that you request or require them to work.

This includes things like training sessions and staff meetings outside of work.

For more information about reasonable hours of work, check out chapter M3 Minimum Conditions of Employment – Hours of Work in your Employment Law Practical Handbook.

Not yet a subscriber to the handbook? Click here for more information.

Until next time…

Claire Berry
Workplace Bulletin

Any incident that occurs in your workplace must be properly investigated.

Whether it is an incidence of bullying, a disagreement between employees, an occupational health and safety breach, or otherwise, make sure you go out of your way to dot every “i” and cross every “t” during the investigation process.

Why? Because even if you think a case is cut and dried, it may not be if you haven’t conducted a proper investigation.

Take the following case as an example:

In 2007, the Australian Industrial Relations Committee (AIRC) ordered that an employee who had previously been dismissed for harassment be reinstated and paid $7,500 in compensation for lost earnings.

The AIRC came to this decision after it determined that the employer did not follow appropriate procedures when it investigated the harassment claim. Because of “significant deficiencies” in the investigation process, the AIRC concluded that the employer had no reasonable basis for terminating the employee’s employment.

So how can you make sure your investigation process is up to scratch and avoid something like this happening to you?

Check out Charles’ article below for 5 great tips on what to do when conducting a workplace investigation.

Until next time…

Claire Berry
Workplace Bulletin

And now over to our Editor-in-Chief Charles Power…

Continues below…

5 things you must do when investigating a workplace incident
By Charles Power
Editor-in-Chief, Employment Law Practical Handbook

Conducting a thorough investigation is vital to resolving any incident that occurs in your workplace properly and legally.

And not only that – a thorough investigation will also ensure that you have all your bases covered if any claim is made against you down the track.

Here are 5 things you must do when investigating a workplace incident:

1. Make sure you set out exactly what you are investigating and what the responsibilities of the investigator are before you begin the process.
2. Ensure that the main investigator is free of any biases that may affect their judgement during the investigation.
3. During the investigation, make sure you give each party a chance to respond to any allegations made against them. Remember, you must take into account each party’s interpretation of events.
4. Take your time when making a final decision. Making the wrong decision will not only damage morale in your workplace, it could also leave you open to legal prosecution.
5. Make sure you indicate clearly in your final report exactly how you came to your final decision.

Regards,

Charles Power
Editor-in-Chief
Employment Law Practical Handbook

Dismissal is always a difficult issue…

And one of the trickiest aspects of dismissal is determining exactly when an employee can no longer perform the inherent requirements of their position.

If you get it even slightly wrong, you could expose yourself to an unfair dismissal claim or even breach discrimination laws.

To find out exactly when is it lawful to dismiss an employee because they cannot perform their position, check out Charles’ article below.

Until next time…

Claire Berry
Workplace Bulletin

And now over to our Editor-in-Chief Charles Power…

Continues below…

How to determine when an employee can no longer perform their position
By Charles Power
Editor-in-Chief, Employment Law Practical Handbook

If you dismiss an employee because of disability, you will breach the discrimination provision of the Fair Work Act.

However, you will not breach this provision if you dismiss the employee because they cannot perform the inherent requirements of their particular position.

In other words, if an employee cannot exercise the skills necessary to perform the essential tasks of their job in their particular position, then they cannot perform the inherent requirements of their particular position.

Now remember, an inherent requirement is not a peripheral requirement. It must be the kind of requirement that, if removed, would make the employee’s position different.

When determining the inherent requirements of a position, you cannot just focus on the requirements of the employee’s job. Why? Because there is a difference between an employee’s job and an employee’s job in a particular position.

For example, the inherent requirements of the job of a pilot are not the same as the inherent requirements of the position of captain of B747-400 aircraft flying on Qantas’ international routes.

So you need to be careful – just because dismissing for incapacity is not discriminatory under the Fair Work Act you cannot necessarily lawfully dismiss.

You also need to consider your liability in these other areas:

• If you dismiss an employee because of disability, you will also breach federal and State anti-discrimination laws. Again, you will have a defence if the employee cannot perform the essential requirements of the role, but in most cases you will also need to prove that it was not reasonable to implement special measures or facilities to enable the employee to perform those requirements.
• If you dismiss an employee who is on workers’ compensation, you may breach federal and State workers’ compensation laws.
• If you dismiss an employee because they are on paid sick leave you will breach the Fair Work Act, unless the employee has not provided a medical certificate or a statutory declaration within a reasonable time period and/or not complied with other requirements for taking sick leave imposed by an applicable enterprise agreement. This prohibition applies even after the employee exhausts their paid sick leave entitlements, until the absence on unpaid sick leave extends for more than 3 months (or total sick leave absences in the last year exceed 3 months). A worker is not receiving paid sick leave when they are absent from work and receiving workers’ compensation.
• If you dismiss an employee in breach of provisions in the employment contract, enterprise agreement or human resources policies regarding incapacitated workers you may be liable for that breach.

If you dismiss an employee because they cannot perform the inherent requirements of their position, and dismissal has not breached any of the laws described above, you should be able to defeat any unfair dismissal claim.

However, there will be exceptional cases. For example, if the employee’s incapacity is only temporary then dismissal might be unfair, particularly in the case of long-serving employee with a good employment record.

For more information on the dismissal process, check out the Dismissal and Unfair Dismissal chapters in your Employment Law Practical Handbook.

Not yet a subscriber to the handbook? Click here for more information.

Regards,

Charles Power
Editor-in-Chief
Employment Law Practical Handbook

When you make an enterprise agreement, sometimes getting it approved is not just a matter of including the correct details…

Sometimes, the attention you pay to the submittal process is just as important.

You see, even if your enterprise agreement meets all the requirements it needs for approval to operate, if you leave just one step out of the pre-approval process, you could find it gets thrown out by Fair Work Australia.

The results of a recent case act as a warning that Fair Work Australia will not approve an enterprise agreement unless every pre-approval requirement has been met.

In the case, the Falls Creek Resort submitted an enterprise agreement for approval, but it was thrown out by FWA. The employer failed to meet his “mandatory” requirement to give employees notice about their right to be represented by a bargaining representative during the agreement making process.

Although FWA said the employer’s failures were “understandable”, given that the representation rights obligations didn’t exist under the previous Act, it still rejected the enterprise agreement.

Check out Charles’ article below to find out exactly how you can meet all of your pre-approval requirements and give your agreement the best possible chance at success.

Until next time…

Claire Berry
Workplace Bulletin

And now over to our Editor-in-Chief Charles Power…

Continues below…

How to meet all your pre-approval requirements when submitting an enterprise agreement
By Charles Power
Editor-in-Chief, Employment Law Practical Handbook

Before submitting your enterprise agreement for approval, make sure you follow these 5 steps:

1. Explain the enterprise agreement to your employees.

You must take all reasonable steps to ensure that:

• the terms of the enterprise agreement are explained to the employees who will be covered by the agreement; and
• your explanation is appropriate for the employees considering their particular needs or circumstances. For example, you must take into account an employee’s age and language skills. Employees who do not read or speak English very well, for example, may require the agreement to be interpreted for them.

2. Adhere to the 21 day waiting period after the Notice of Representational Rights is given.

Employees must not vote on the enterprise agreement until at least 21 days after you give them notice of their representational rights.

3. Adhere to the 7 day access period.

You must provide all employees who will be covered by the enterprise agreement with either:

• a copy of the agreement; or
• sufficient access to the proposed agreement for a period of 7 days prior to voting on it.

4. Provide the necessary information to employees

At the same time as complying with the access requirements (outlined at point 3 above) and therefore at least 7 days prior to the vote, you must notify your employees of:

• the time and place where the vote will take place; and
• the voting method that will be used (e.g. a ballot or an electronic method etc.)

Once you have satisfied all these steps, you can then ask the relevant employees to approve the agreement via a vote.

5. Make sure your agreement is properly approved!

The employees who are proposed to be covered by the enterprise agreement must all vote either for or against the agreement.

By following the above steps, you will go a long way towards making sure Fair Work Australia’s approval of your agreement doesn’t hit any bumps in the road.

For more information about the agreement making process, check out chapter E2 Enterprise Agreements in your Employment Law Practical Handbook.

Not yet a subscriber to the handbook? Click here for more information.

Regards,

Charles Power
Editor-in-Chief
Employment Law Practical Handbook

On 1 August 2011, brand new equal opportunity legislation for Victoria will come into force.

This new legislation will place increased obligations on employers to be proactive about enforcing equal opportunity law rather than simply complying with it after a complaint has been made.

So what does this mean for you?

If you are a Victorian employer, you will need to start developing strategies now to deal with the new equal opportunity act.

I’ll be sure to give you some pointers on how to go about this in future Bulletins.

You should also keep an eye out for more information about equal opportunity in the workplace in future Employment Law Practical Handbook updates.

Not yet a subscriber to the handbook? Click here to find out more about how it can benefit you and your business.

Until next time…

Claire Berry
Workplace Bulletin

And now over to our Editor-in-Chief Charles Power…

Continues below…

How to ensure sexual discrimination doesn’t occur in your workplace
By Charles Power
Editor-in-Chief, Employment Law Practical Handbook

Recently, a particular case has reiterated the need for employers to be alert about discriminatory behaviour occurring in their workplace.

In November of last year, the Queensland Anti-Discrimination Tribunal found an employer guilty of discriminating against a homosexual employee on the basis of his sexuality.

According to the employee, the employer referred to him as a “shirt-lifter” on several occasions and frequently asked him about his sexual habits.

The employer argued that the employee freely discussed his sexual preferences and that his remarks weren’t meant to offend, however the employee disputed this and claimed that the employer’s behaviour made him feel uncomfortable.

The tribunal accepted the employee’s claim, and found that the employer’s behaviour was discriminatory and the employee had deliberately been treated differently to others in the workplace because of his homosexuality.

The employer was ordered to pay the employee $2,000 in damages.

So what can you take from a case like this?

Remember that comments made in the workplace, even ones supposedly made in jest, can really offend people and also constitute discrimination.

In order to take steps to prevent this kind of behaviour occurring in your workplace, you can:

• Ensure that your workplace anti-discrimination policy outlines that discriminating against someone based on their sexual orientation is not acceptable.
• Emphasise in policies or company -wide emails or newsletters that homophobic comments or behaviour will not be tolerated in the workplace.

Regards,

Charles Power
Editor-in-Chief
Employment Law Practical Handbook

Here at the Bulletin, I often get sent queries about employment law issues like dismissal, redundancy, leave, awards, agreements and more.

So this week, I thought I would share 3 of the most frequently asked questions (and their answers!) with you…

Here goes…

Question: Is sick leave included as part of a redundancy payment?

Answer: Unless a contract of employment or industrial instrument provides for it, employees do not have an entitlement to be paid for accrued but unused sick leave when their employment is terminated.

Payment for accrued but unused sick leave is definitely not part of any redundancy payment.

Question: I have an employee who needs to take two days off to have some dental work done. Is he entitled to use personal leave for this or should he be using annual leave instead?

Answer: Strictly speaking, personal leave is only available for illness or injury.

However, if the procedure is such that the employee will be unfit for work (for example he is having his wisdom teeth out under general anaesthetic), it would be permissible for him to use personal leave (even if the procedure is elective).

Question: I was wondering how long we have to keep an employee’s file after their employment is terminated? Are there any rules surrounding this?

Answer: You need to keep your true employee records, which include things like pay, leave, overtime, leave, hours of work etc, for a period of 7 years.

When disposing of these records, make sure that you observe any privacy policy that your company may have and carefully destroy any personal or sensitive information belonging to an employee.

To find out the answers to more frequently asked employment law questions, keep an eye out for the Letters section in your next Employment Law Practical Handbook update. It’s due in your mailbox shortly!

Not yet a subscriber to the handbook? Click here for more information.

Until next time…

Claire Berry
Workplace Bulletin

And now over to our Editor-in-Chief Charles Power…

Continues below…

How to find ‘acceptable alternative employment’ for a redundant employee
By Charles Power
Editor-in-Chief, Employment Law Practical Handbook

Following on from Tuesday’s Bulletin, today I’m going to show you what kind of employment is considered ‘acceptable alternative employment’ in a redundancy situation.

If you find an employee ‘acceptable alternative employment’, you may not have to pay them redundancy pay.

Also, an important thing to remember is that even if the employee doesn’t think the employment you’ve found for them is acceptable, it still may be!

Employment can be ‘acceptable alternative employment’ if:

• the work is ’similar’;
• the location of the work is not unreasonably distant (i.e. is not too far away from the employee’s previous role with you);
• the pay and hours of work are similar;
• the seniority of the role is the same;
• the job security is comparable to the security they had with you;
• the work load is not substantially different; and
• the work matches the employee’s skills set, qualifications and experience.

Now, not all of these factors will be relevant in all cases. For example, seniority may be irrelevant when the work is unskilled.

But you still have to tread carefully…

For example, in a recent case (Vicstaff [2010] FWA 3141), FWA rejected an employer’s application to be relieved of the obligation to make redundancy payments on the grounds that acceptable employment had been obtained for the retrenched employees.

Their application was rejected because FWA determined that the pattern of working hours for the new employment was substantially different and would involve substantially less take-home pay because of reduced overtime.

Regards,

Charles Power
Editor-in-Chief
Employment Law Practical Handbook

If you’ve considered making some redundancies lately, but put the idea in the “too hard” basket because you think it’s too difficult to prove a redundancy is genuine, think again.

A recent decision handed down by Fair Work Australia shows that sometimes, the roles and functions performed in a job don’t have to end completely for the job to be considered a genuine redundancy.

In other words, you can arrange for the same functions and duties performed in a redundant role to continue being performed, even if the “job” they were performed in no longer exists.

For more information and an analysis of the case and what you can learn from it, check out Charles’ article below.

Until next time…

Claire Berry
Workplace Bulletin

And now over to our Editor-in-Chief Charles Power…

A job doesn’t have to end for it to be considered genuinely redundant!
By Charles Power
Editor-in-Chief, Employment Law Practical Handbook

If an employee is dismissed in a case of genuine redundancy, they will be barred from making an unfair dismissal claim.

Remember, a redundancy is genuine if the employee’s job is no longer required to be performed by anyone because of changes in the operational requirements of the employer’s enterprise.

Fair Work Australia (FWA) recently considered this issue (Ulan Coal Mines [2010] FWAFB 3488) after a mining company reviewed operations at an underground coal mine and decided to reduce its workforce, outsource certain functions and increase the proportion of employees with trades qualifications.

The company decided that 38 mineworker jobs had to go and selected those employees to be retrenched on the basis of volunteers firstly and then seniority grounds for the balance. Yet at the same time, the company increased the number of trade-qualified mineworker jobs by 11.

FWA decided that the 38 retrenchments were cases of genuine redundancy, despite the fact that the company had increased its trade qualified workforce.

FWA distinguished between the “jobs” of the retrenched mineworkers – which had become redundant – and the functions performed by those mineworkers, which continued.

FWA ruled that the jobs of the mine workers had become redundant, even though the employer still wanted the functions or duties previously performed by the retrenched mineworkers to be performed.

An employer must comply with any obligation in a modern award or enterprise agreement to consult with employees about a redundancy for it to be genuine.

In this case, FWA ruled that the relevant consultation obligations in the enterprise agreement had been followed by the company meeting with employees and their union representatives to explain the redundancy process.

FWA decided that the employer did not need to have a second meeting one-on-one with the employees selected for retrenchment.

This is significant because the consultation provision in the enterprise agreement in this case is very similar to that which appears in many modern awards.

Regards,

Charles Power
Editor-in-Chief
Employment Law Practical Handbook