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

One very happy client - want to know why?

I thought it is about time I let you into a secret - we can save you over 66% of your current recruitment agency costs or, if you currently do it yourself, probably 33%.

We have a client - a Technology Protection start up that has a massive presence in the US and is expanding into Asia. They offer mobile security devices for your phone so, say you are out at a bar and your phone is lost or stolen, you will have a new one delivered to you with all the content of the original - within 24 hrs. I, for one, would love that security...

They needed to hire their senior team in preparation for ramping up to a headcount of 200. At the time we partnered with them, they had the CEO, CFO and Director of HR - they needed to find the rest of their senior team. What we offered them was a highly experienced recruitment team able to liaise with senior execs - plus a bespoke service:

·         we wrote the ads and placed them in SEEK

·         culled & appropriately rejected the unsuccessful applicants

·         phone screened and coordinated interviews

·         provided verbal feedback

·         completed reference checks and organised background checks

Some of the salary packages were $200k for which an agency would typically charge 25% of total compensation - we charged an hourly rate and, effectively, played their temporary 'in house' recruiter.

Guess what the difference was - on average $4,500 vs. $50k!

Plus all those offered roles accepted and we are yet to have a fall off. The applicants loved how they were managed and treated throughout the process and the business has money left over to invest in other things.

 I just thought you might like to know......

Unique yet? Think again!

In Greg's last last blog he touched on the WHS structures and processes now rolled out routinely in large organisations (200+ employees). In this blog, we continue by encouraging SME’s to emulate their large business counterparts and suggest some immediate practical steps that will see your business well on the road to safety and compliance…

Unique yet? Think again!

Think how overwhelmed SME’s felt in 2011, when safety culture antagonists such as the WHS Act - Regulation and Codes of Practice come into effect.... ouch...

We need to discover creative ways to integrate safe practice into overall business conduct. Where it’s done really well, the big guys consult with the employees to define and document policy relating to work health and safety. Done effectively, health and safety outcomes are achieved in accordance with defined plans.

 Ideally, this is measurable; in ways shown to be consistent with activities:

·         consideration of legal requirements

·         standards, codes and guidelines

·         health and safety hazards and risks, etc.

Work health and safety management in SME’s should be approached with the same objectives in mind:

 ·         effective SME safety governance - insisting that workers routinely demonstrate practices that reflect the commitment of the safety policy across every system of the business

Don’t forget that failure to exercise such due diligence may result in criminal conviction and/or significant financial penalty (yes, even for an SME). Due diligence is a new duty that requires SME owners/operators to not only have an understanding of their health and safety risk profile, but also to take positive steps to put in place ongoing safety governance and management arrangements.

How can SME’s meet their due diligence obligations?

 You can start by bringing it to life with practical, bite-size steps such as:

·         promoting workers' knowledge and health and safety matters through effective consultation and training

·         ensuring everyone understands the nature of the business, as well as the workplace risks and hazards

·         insisting on a timely, documented response to incidents and issues

·         providing reasonable resources that are appropriate to the degree and extent of organisational risk identified

 If the due diligence process is built progressively, it will naturally lead to the capture of real-time ‘people data’, on the go. When this happens you will see that WHS, done well, can improve safety, prevent hazards and provide measurable improvement in adaptation and alignment within your business plan and overarching company strategy.

These are the must-do steps to ensure you comply with your work health and safety responsibilities:

 

·         effectively implement your health and safety policy

 

·         establish focussed health and safety training - for all officers and workers

 

·         facilitate a consultative approach to all health and safety matter - ensuring all workers are a part of the decision-making processes that affect workplace health and safety

 

·         identify quantitative and qualitative safety targets - with the aim of driving ongoing hazard and risk data collection and analysis

 

·         implement agreed controls in response to identified risks and hazards

 

·         broadcast regular health and safety information - to all workers and visitors to the workplace

 If you are doing these things, you are well on the way to establishing a positive and effective safety culture!

 If your SME needs help to grow a healthy safety culture, call Employee Matters ….

 

 

Are your Work Health and Safety needs unique? No Way!

I though that you might like a change from me, so I have asked a WH&S expert from our team to write this blog.

 

In 2010/11 - 374 people died due to work-related traumatic injuries.

Australia’s Lost-time Injury Frequency Rate (LTIFR) paints an unsettling work health and safety scenario - one week or more was lost per million hours worked.

Worse still, we are only now up to March - 30 lives have been lost in Australian workplaces so far ...

But how could these statistics be of any possible relevance to SMEs? We're not the same as the big gun industries - we don't hazard the same risks! They have agriculture, mining, forestry and construction - that's sowing, tree felling, mine blasting - the big stuff!

The truth is that SME workers frequently face very real workplace risks - given that 99% of Australian businesses are SMEs - this situation cannot be ignored.

Why?

OK, natural protective mechanisms, typically built into the culture of large (200+ employees) organisations by natural evolution - think how higher staff volume might equate to greater information capacity and, therefore, to greater necessity in supervising  work practices:

·         think about the complex safety management systems - the policies and safe operating procedures

·         the hierarchy of control, the complexity of infrastructure - the representatives - the systematic ways of controlling or eliminating risk, and their continuous development

·         the huge diversity of Safety Employees; advisors, managers, coordinators, analysts, strategy and risk professionals; there are many more

Now think of the barriers to building a safety culture for SMEs...

• the typical capital-raising constraints that so often result in low investment in safety practice
• the severe time constraints on business owner/operators, who often take the view that ‘our safety management system will just have to wait’

Think of how the post-GFC economic conditions severely dampened SME business confidence - we couldn’t help but focus on the bottom line, just to stay in business- and we still can’t!

Greg Baynie is one of our HR Partners and our resident expert in W&HS, call him today for an obligation free discussion to understand your risk and exposure.

 

Behind every great woman there is a great man

 

Whilst we are celebrating International Women's Day today I wanted to remember that good business partnerships are often founded on couples going into business together whose strengths lie in diverse, but complimentary, areas. So often we hear the catchcry “Behind every good man there is a great woman”, as if his success depends on this support. It has often been, to my chagrin, and I am sure to most feminists as well, that the female role is seen as one of support and often played out in the background. I would also speculate that to see the roles reversed may not sit particularly well with many men; think of Dennis Thatcher and Tim Mathieson. Remember the scramble, when Julia Gillard became PM, to craft a suitable role for the first ‘new man’ of The Lodge.

The reality is just that though, I could not have started Employee Matters without Mark’s expertise and his encouragement, support and confidence that he had in me; that firstly, we could do it and secondly, that it would be successful. Part of the reason for this is that we have complimentary skill sets; I am apt to jump in and not be buried in detail for long, but I’m great with developing and maintaining relationships. Mark writes like a poet and is a wordsmith and I certainly lack great skills in this area. Mark is focused on the finance, IT, editing and the risk & compliance side of the business, enabling me to get on with what I do best. This is often the struggle faced by SMEs; trying to be an expert in all areas of running a business. We don’t always agree on everything, but we have trust and respect in our relationship that enables us to work through issues to find or create a solution. All employee relationships need these ingredients to be successful but, sadly, they are often lacking to the detriment of the relationship and the business. The employer needs to let their employees know that they matter.

So I guess I am one of the lucky ones to have a ‘great man’ behind me.

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