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10 Things You Need to Know About FWA National Employment Standards (NES)

• So what is personal leave? Sounds like secret women's business to me.
• What is flexible working? Does that mean flexi-time?
• What is NES? Do I need to know, should I care?

The answer to all these questions is yes!

Back on 1/1/2010 when Fair Work Act legislation came into play so did the National Employment Standards or NES. These are nationwide, minimum employee conditions for all permanent employees. So what does it cover and what does it mean for your business? Well, the first aspect you need to be aware of is that any new permanent employees that you hire, whether full time or part time, need to receive a copy of the NES Information Worksheet. If you don't share this document it is considered a breach of the Act and there are potential fines. Here is a link to the document for your ease of search http://www.fairwork.gov.au/FWISdocs/Fair-Work-Information-Statement.pdf

So, practically, for a business owner what does this mean? There are 10 minimum workplace entitlements in the NES - bear in mind that these are the minimum.

1.  A maximum standard working week of 38 hours for full-time employees, plus ‘reasonable’ additional hours

There is much debate about this one but essentially my view would be more than 30mins extra per day everyday could be deemed as unreasonable by FWA Ombudsman. That said, I think this would vary on the industry and the salary earned

2.   A right to request flexible working arrangements to care for a child under school age, or a child (under 18) with a disability

The key word here is ‘request’ however; it is becoming increasingly difficult to say no, unless the decision will mean financial hardship for your business versus some inconvenience. A word of caution - employees are becoming more aware of these rights and there will be an increase in this type of request but let’s remember, in these economic times, it is the exception rather than the rule where employees take extended periods of unpaid leave

Flexible arrangements might mean reduced hours, a later start to allow for childcare drop offs, part time work, working from home or a nine day fortnight. It is also about compromise, with both parties making it work. There is also a formal process that needs to be followed to manage this request and response process

3.  Parental and adoption leave of 12 months (unpaid), with a right to request an additional 12 months

This means potentially losing an employee for a period of two years - the upside is that if this is arranged up front it may be a more attractive option for a contractor, or you might look to bring someone into the role for career development on a temporary basis

4.  Four weeks paid annual leave each year (pro rata)

No real change here but you may want to think about a forced shut-down - maybe at Christmas to maximise productivity down times. Check your Modern Award as there are timing and process issues to be considered

5.  Ten days paid personal/carer’s leave each year (pro rata), two days paid compassionate leave for each permissible occasion and two days unpaid carer’s leave for each permissible occasion

Personal Leave covers sick leave for the employee but also leave to care for immediate family members as well. Employees can also take an additional two days on each permissible occasion

6.  Community services leave for jury service or activities dealing with certain emergencies or natural disasters. This leave is unpaid except for jury service

If you have employees that are members of the SES for example you need to have a contingency plan in place for when this employee might be on extended, unpaid leave

7.  Long service leave

As per your State Legislation entitlements

8.   Public holidays and the entitlement to be paid for ordinary hours on those days

Some Awards will allow your employees to take a day in lieu for working a public holiday

9.   Notice of termination and redundancy pay

Previous to FWA 2010, you were only entitled to redundancy, if it was a contractual clause. Now everyone is entitled but their length of service only starts from 1/1/2010

10. The right for new employees to receive the Fair Work Information Statement

This is the link attached above which should be sent out with the employment contract and letter of offer. http://www.fairwork.gov.au/FWISdocs/Fair-Work-Information-Statement.pdf

Employees are becoming more aware of these rights and I suggest that it is important to be aware of your obligations and to determine if and how you can accommodate these requests, or whether you have the option to decline the request. As with all legislation, there are some processes that need to be followed - e.g. the timeline for responding to a request for flexible working and the requirement for this to be in writing. Make sure you and your team are aware of these obligations.

Kapow!!

I had a call recently for advice where a senior member of a team had punched another senior member. Has this ever happened at your work or almost happened? What would you do if it did? Nothing and hope it all goes away, right? Wrong! For a start, the incident could be deemed as assault and might involve the police. Also, as the business owner, you have a duty of care for all your employees. If you do nothing it could be seen that you condone the behaviour - or, as bad, you don't care!

You might think the punch is a sackable offence - it might be, but you need to investigate first. So how do you do this? You need to get someone who is independent and experienced in conducting this type of investigation. Consider:

·         you may choose to send both parties on paid leave while the investigation is conducted - check your Modern Award first though

·         both parties (and any witnesses) need to be interviewed to get their account of the incident; both parties are entitled to have a support person in the meeting. It may be useful to have a scribe.

·         the investigator needs to make a decision based on the 'balance of probabilities' around what actually occurred

The investigator forms a view of the likely events - then a decision needs to be made - what happens next?

 Three possibilities:

 a)     the incident did not occur - both parties are informed that there are no unresolved issues outstanding

 

b)     both parties were equally to blame but the physicality was minor - both parties given a final warning and told should this behaviour occur again it could result in the termination of their employment

c)      one party is deemed to be the aggressor and in a meeting (party is allowed a support person to attend) is advised of this outcome which may result in the termination of their employment - which could be given with or without notice. The other party involved should be advised formally of the outcome (with only necessary details). The witnesses are advised that the situation has been resolved

Sounds like a police investigation? Well, yes, it probably does - but this is best practice and should result with a fair and thorough process and outcome.

 

Are you off your trolley?

By Natasha Hawker:

Are you responsible for your employee’s mental health? No, you don’t think so? Well think again!

1 in 5 Australians will suffer some form of mental disorder at some stage of the life. Every year a further 20,000 are found to have a mental illness. This includes during their working life.

So, what does this mean for you as a business owner? Well there are two issues:

First, largely due to the stigma attached to mental illness, it is often not seen in the same category as illnesses such as the flu, measles or cancer. We often don’t know how to treat or interact with someone with a mental illness, whereas we are comfortable to send flowers and arrange support for the 'traditional' maladies. We need to admit to ourselves that it's highly likely we will employee someone with a mental illness and we need to be able to manage this, within our business.

One of the common causes of mental illness is stress and the second, and mostly unknown repercussion for business owners, is that stress falls under Workplace Health and Safety - there is an onus on Directors to protect employees. The current NSW Act places the primary duty of care for health and safety on the employer. You must create a working environment that is safe and can eliminate health risks that are stress-related.

As an employer you are required to:

·         use risk assessment techniques to understand and measure risk levels

·         respond to any identified stress hazard(s) by implementing suitable control measures

As such, there is now a strong expectation from the courts that employers are able to demonstrate how documented assessment of hazards and risk, combined with the use of sufficient, measured risk control, actually lead to effective risk reduction.

In the case of State of NSW vs. Marilyn Mannal (2005) NSW CA 367, Judge McLaughlin found the State of NSW Dept of Housing in Wagga was derelict in its duty of care and awarded $330,000. Ms Mannal claimed that when she was appointed as a Team Leader after a restructure, she was subjected to victimisation, harassment, humiliation and abuse in the workplace, which had caused psychiatric injury.

Ms Mannal had been instructed to attack the existing workplace culture and started her new role enthusiastically. The team, maybe still loyal to the previous, replaced Team Leader, became more dysfunctional; actively harassing her, were rude and did not accept her direction. Her Manager, although aware of the situation, failed to intervene on Ms Mannal’s behalf. After 19 months and many requests to Management for support, Ms Mannal sought medical assistance for a stress disorder. The Judge found that the management knew there was significant disruption and disloyalty within the team and that, therefore, the risks to mental health were foreseeable and that both formal and informal internal mechanisms in place had not been utilised.

As an employer, you are not expected to be a counsellor nor a medical practitioner but you are expected to provide a safe working environment and appropriately support any employer suffering from a mental illness. We can help you with strategies to mitigate this risk. Remember all your employees matter!

 

Natasha Hawker owns Employee Matters Pty Ltd; an HR Consultancy that assists small to medium businesses with their HR functions to make them more efficient and profitable. Their offering includes HR Management, Recruitment, Training, Coaching, and Exit Management – find them at www.employeematters.com.au