Industrial Relations

Managing Staff

Industrial Relations and Human Resources

Industrial Relations examines the relationship between employees and management, as well as the governments, institutions, and organizations that directly or indirectly regulate the industrial relations system.

Human Resources (human resource management) is the governance of an organization’s employees.  A company’s human resources department is responsible for creating, implementing and/or overseeing policies governing employee behaviour and the behaviour of the company toward its employees

See also:

Fair Work Ombudsman on the case for Young Worker’s Rights

Fair Work Ombudsman on the case for Young Worker’s Rights

The Fair Work Ombudsman, Natalie James, recently place all employers on notice in regard to the exploitation of young workers around Australia:

“It’s time to address the myths that have achieved widespread levels of acceptance and are resulting in employers short-changing young workers…”

READ MORE
(Courtesy of Michael Taylor, HMT Consulting)
May 2017

Fair Work Commission Reshapes Penalty Rates Regime

Fair Work Commission Reshapes Penalty Rates Regime

On the 23rd February, the Fair Work Commission handed down its decision relating to Penalty Rates in six awards in the Hospitality & Retail sectors ….

As a community we need to resolve the questions “Do we want & need all services delivered on a 24/7 basis?” AND “What price do we want to pay or be paid for them?”

READ MORE
(Courtesy of Michael Taylor, HMT Consulting)
February 2017

How Heatwave Conditions impact your Obligations as an Employer

How Heatwave Conditions impact your Obligations as an Employer

2016 was the hottest year on record in Australia. January/February has seen regional centres record their hottest days with temperatures approaching the high 40’s in Victoria, NSW and Qld.

Therefore now is an opportune time to revisit the issue of employer obligations to staff engaged in physically challenging activities in enclosed environments or the outdoors.

READ MORE
(Courtesy of Michael Taylor, HMT Consulting)
February 2017

Checklist: Essential Steps to take in Engaging Employees

Checklist: Essential Steps to take in Engaging Employees

Several points are essential in establishing an employment relationship consistent with best practice and the requirements of current federal legislation.

The order in which they appear should be reflected in the Company’s actions when engaging any and all staff (although, particularly in the case of emergencies/unforeseen circumstances, this may not always be practicable).

READ MORE
(Courtesy of Michael Taylor, HMT Consulting)
December, 2016

NEW Queensland Training Ombudsman

Queensland Training Ombudsman 

The Queensland Government passed legislation to establish a permanent Queensland Training Ombudsman (QTO) as part of its plan to focus on quality training and reinvigorate the vocational educational and training (VET) sector in Queensland effective 22 April 2016 (PDF, 996KB).

The QTO will strengthen the state’s VET sector by improving consumer protection and providing VET students, employers and other significant stakeholders with a clear pathway for complaints.

The Minister for Training and Skills, Yvette D’Ath, has appointed Mr Geoff Favell to the position of Queensland Training Ombudsman.

Role of the Queensland Training Ombudsman

Download Infosheet

The QTO provides a free, confidential, and independent service to review and resolve enquiries and complaints from apprentices, trainees, students, employers and other stakeholders about the VET system.

Volunteers Are Human Resources…or Are They?

Volunteers Are Human Resources…or Are They?

The complexity of volunteer involvement often amazes people. Given the consequences to employees of ineffective volunteer involvement, how can a Human Resources Department not be connected to the daily issues of employee/volunteer relationships?

Managing Performance

Managing Performance – some tips.

Many small to medium-sized businesses are experiencing difficulties in an ever increasingly competitive environment; gaining and maintaining the best from your team is fraught with many challenges, some of which are explored here.

Above all else, consistency, transparency and excellent communications are the keystones to managing performance in the modern workplace.

READ MORE (Courtesy of Michael Taylor, HMT Consulting)
March, 2016

Drugs in the Workplace.

Drugs in the workplace – an escalating problem.

A recent decision by a member of the Fair Work Commission (F.W.C), that it was “not unjust or unreasonable” to require employees to provide oral fluid (saliva) and urine samples as part of a bona-fide workplace drug testing regime, canvassed many issues in regard to this urgent and escalating workplace matter.

READ MORE (Courtesy of Michael Taylor, HMT Consulting)
May, 2015

Rostering Challenges

Rostering Challenges

The Outdoor Recreation Industry operates over a wide spread of hours and in very challenging conditions. Employees are routinely called upon to work extended periods “in the field”, and often in remote locations, well removed from their home-base. Coincidently, Outdoor Leadership entails the delivery of training to novices, relating to complex/ physically and often demanding activities, in hazardous conditions.

READ MORE (Courtesy of Michael Taylor, HMT Consulting)

The Blurred Line between ‘Casual’ & ‘Part-time’ Employment

Many employers in the Fitness, Leisure, Retail and Hospitality sectors require maximum flexibility to ensure the continuing success of their businesses. Significant numbers have plumped for ‘casualised’ workforces when faced with dynamic market conditions for their goods or services. In the process, some have fallen foul of recent developments in workplace law by overlooking obligations they assumed they did not incur through engaging (regular) casuals.

READ MORE (Courtesy of Michael Taylor, HMT Consulting)

Why Penalty Rates?

The Federal Government has commissioned a review of the operation of the Fair Work Act 2009 by the Productivity Commission.  The exercise promises to be far-reaching with the Commission scheduled to hand down its findings and recommendations in the second half of the year.

READ MORE (Courtesty of Michael Taylor, HMT Consulting)

Workplace Bullying

When a person or group of people repeatedly behaves unreasonably towards a worker or a group of workers at work; and that behaviour creates a risk to health and safety.

READ MORE (Courtesy of Michael Taylor, HMT Consulting)

Award Coverage of Outdoor Leaders

Significant Developments

Since June 2011, when the Queensland Outdoor Leaders Award [State] 2005, was cancelled there has been no “dedicated” Industrial Award governing the minimum term and conditions of workers in in Outdoor Recreation.

A series of determinations by Fair Work Australia, relating to applications for approval, under section 185 of the Fair Work Act 2009, of Enterprise Agreements have given strong guidance to employers and their representatives as to the issue of Award Coverage in this Sector.

READ MORE (Courtesy of Michael Taylor, HMT Consulting)

See also Employment Awards for the Outdoor Recreation Sector on the Outdoor Council of Australia website

Letter of Appointment

An employer has an obligation to make certain terms and conditions of employment clear to employees. A good time to do this is in a letter confirming the Offer of Employment.

The letter should cover the following:

  • Starting date, time and place (the date is important, particularly in regard to the period of probation that impacts on the period of notice of termination that the person must be given);
  • Name of the industrial instrument (Modern Award or EBA) under which the person will be employed (or alternatively, a simple confirmation that a separate employment contract will be drawn up and issued in due course):
  • The employee’s job classification and employment status (part-time, casual etc);
  • The duration of probationary employment and the period of notice that will apply in relation to termination during that period, by either side:
  • Leave arrangements, personal/carers, annual and any other paid or unpaid leave agreed by the parties;
  • Pay details including pay day and method and regularity of payment:
    Need to provide special equipment (if necessary);
  • Offer subject to a satisfactory Police check, and presentation of ‘Working with Children’ credentials (if applicable);
  • A brief description of the main duties involved.

It is strongly recommended that accompanying the Letter of Employment, should be a copy of the National Employment Standard relating to ‘Employee Information’.

Managing Terminations

Managing Terminations – Forward With Fairness Legislation

Introduction:
From 1st July, 2009, the Fair Work Act 2009, gives access to unfair dismissal laws to a larger population by removing the ‘more than 100 employees’ limit imposed under the former Work Choices Regime and replacing it with a new ’15 or more employee’ standard. Concurrently, employees earning up to $106,000 p.a (indexed), also have rights to seek redress under the new legislation.

This section touches upon the main aspects of the new system, but notes that some areas, particularly regarding representational rights and ‘general protections’ are yet, (as at May 2010), to be fully tested.

Unfair Dismissals:
To address the concerns of small business, the federal government has limited the operation of the “Unfair Dismissal” regime. Certain employees are precluded from making an application to Fair Work Australia (FWA) for redress of their termination:

Employees excluded from making a claim:

  • Employees of businesses of 15 or more employees who have been employed for fewer than 6 months;
  • Employees of businesses with less than 15 employees, employed for fewer than 12 months;
  • Employees dismissed due to *genuine redundancy;
  • Employees of a business of less than 15 full-time equivalent employees, (or “simply 15” employees after 1.1.11), employed for more than 12 months, where the employer can demonstrate that they have followed the ‘Small Business Fair Dismissal Code,(a copy of which is incorporated in this Module). Concurrently, the “Unsatisfactory Work Performance/Conduct Policy”, incorporated in this Module is designed to meet the Employer’s obligations under the Code and the Act;
  • Casuals who do not meet the requisite minimum employment period as permanent employees and who are not engaged on a regular basis with a reasonable expectation of continuing employment;
  • Persons making a claim more than 14 days after being dismissed, (although FWA has some discretionary powers).

FWA will seek to mediate matters, with an emphasis on re-instatement, although they have power to make orders for compensation of up to 26 weeks pay.

FWA will conduct an “inquiry” at the workplace or through teleconferencing, in a timely fashion. During the ‘conciliation stage the employer and employee may be represented (in the employer’s case, by a paid agent, industry association or lawyer). However, the Act precludes representation generally by Lawyers or Paid Agents in the case of matters going to formal submissions (see note in introduction).

N,B: Within this system procedural fairness is to the fore, with every opportunity to be given to the employee to be made aware of their short-comings and to be given reasonable opportunity to address them, before their employment is terminated. All steps must be well documented, to avoid an ‘unfair dismissal’ claim being sustained.

*Redundancy:
A person’s dismissal will be a case of genuine redundancy if:
(a) The person’s employer no longer required the person’s job to be perform by anyone because of changes in operational requirements of the employer’s enterprise; and
(b) The employer has complied with any obligation in a modern award or enterprise agreement that applied to the employment to consult about the redundancy.
However, a person’s dismissal will not be a case of genuine redundancy if it would have been reasonable in all circumstances for the person to be redeployed within:
(a) The employer’s enterprise; or
(b) The enterprise of an associated entity of the employer.

Under the National Employment Standards, applicable from 1.1.10, employees of employers having 15 or more employees will have obligations to pay severance pay, based on the employee’s length of service and age, up to a maximum of 16 weeks pay.

Further, an employer making 15 or more employees redundant, must notify Centrelink.

Unlawful Dismissals:
Employees have a range of protections from an employer taking unlawful actions to either terminate or “harm” their employment.

Under the General Protections provisions of the Fair Work Act 2009, employee’s workplace rights are guaranteed, through the provision of effective relief of persons who have been discriminated against, victimised or otherwise adversely affected.

Indeed a prospective employee is taken to have rights he or she would have if he or she were employed in the prospective employment by the prospective employer.

Adverse action includes, but is not limited to:

  • Altering the position of the employee to the employee’s prejudice; or discriminates between the employee and other employees of the employer;
  • Refuses to make use of, or agree to make use of, services offered by an independent contractor; or
  • Refuses to supply, or agree to supply goods or services to an independent contractor. “Unlawful Terminations” relate to:
  • An employee’s temporary absence from work due to illness or injury
  • Trade union activity
  • Non-membership of a trade union
  • Filing a complaint against the employer
  • Race, colour, sex, age, physical or mental disability, marital status, family responsibilities, pregnancy, religion, political opinion, national extraction or social origin
  • Community service
  • Maternity or paternity leave .

N.B. In relation to allegations of unlawful terminations, the onus of proof remains on the employer to prove that the dismissal was not because of, or did not include, one or more of the previously listed grounds.

Claims are heard by the Fair Work divisions of the Federal Court and Federal Magistrates’ Court.

In relation to General Protections applications, there is a 60 day limit on lodgements; further costs can be ordered by the Courts, with few limitations on damages awards.

Small businesses are not excluded from “Unlawful Termination” claims.

Best Practice – Managing Performance
There is a strong link between the steps taken to:

  • Recruit new staff
  • Manage the performance of staff
  • In the event that the employment relationship fails, manage the termination of the individual.

Appropriate action in all phases will minimise the risk to both the reputation of the Employer, through avoiding unnecessary litigation, and to the morale of the workforce.

Accompanying is a set of sample letters with explanatory memorandum relating to each of, appointment, performance management and termination of staff. They, due to their very nature, cannot anticipate all contingencies; therefore some discretion is needed to reflect the circumstances.For instance, should the employee’s action warrant it, there is no restraint on the C.E.O or other authorised person, instantly terminating an individual for criminal action or other wilful misconduct.

All current employees and future inductees, should be issued a copy of the‘Unsatisfactory Work/Performance /Conduct Procedures’, template document contained herein, to ensure that all team members understand how and why actions they take in their employment will be addressed by the Organisation.

First Written Warning

PERFORMANCE – First Written Warning

Introduction:

The first written warning should include the following key elements:

  • Reinforce the standard of performance or conduct expected, the employee’s failure to
    meet the standard and the severity of the situation;
  • Ask for the employee’s response. The response and the Manager’s consideration of
    the response should be noted and recorded in the warning;
  • Nominate a suitable review period to monitor performance/conduct;
  • Outline the consequences of continuing the unsatisfactory performance/conduct; and
  • Make reference to previous oral warnings and their dates.

Date:
Name:
Address:

Dear_____________,

RE: First Official Warning in relation to Conduct/Performance.

As you know, (insert the name of the staff member in authority over the employee concerned,
if not the person actually signing the letter) has been working with you to improve your
performance (insert period of time). But unfortunately performance issues remain unresolved.
This is your first official warning (specify details of unacceptable conduct/performance).

The warning follows the counselling/disciplinary interview held on (date) in relation to the
issue(s).

During this interview, you made (the following) or (no) comments in relation to your
(misconduct) or (performance) (insert response if applicable).

(Repetition of this conduct or failure to improve) may result in the termination of your
employment.

Your (conduct/performance) will be reviewed (date).

This warning will be placed on your personnel file, and will remain current, in relation to the
issues addressed above for a period of ___ months.

If you would like to discuss this matter further, please do not hesitate to contact the
undersigned.

Yours faithfully,
———————–
(relevant officer).

Unsatisfactory Work Performance

Unsatisfactory Work Performance/ Conduct Procedures

It is important that all team members have a clear understanding of the consistent process for all employees regarding Unsatisfactory Work Performance and Misconduct.

Conditions leading to action pursuant to this policy include the following:

  • Inefficiency or negligence in the performance of the specified duties of the position held; or
  • Misbehaviour or misconduct which includes committing acts which impede the carrying out of the employee’s work, or that of colleagues, or failure to comply with a reasonable instruction from a team member on authority; or
  • Action which is prejudicial to the health or safety or other employees; or
  • Breach of Skills Alliance’s policies or procedures.
  • Conduct causing harm to the relationship between the organisation and its clients or stakeholders.
  • Dishonest or unethical behaviour.

Consistent with the requirements of the Fair Work Act 2009, your employer has developed the following disciplinary procedures for unsatisfactory work performance:

  • Stage 1 – Training and counselling of the employee concerned through discussion with their Manager.
  • Stage 2 – First written warning in the event the agreed actions / measures have not been achieved.
  • Stage 3 – Second and final written warning in the event the agreed actions / measures have not been achieved.
  • Stage 4 – Termination of employment in the event the agreed actions / measures have not been achieved.

Throughout all stages the employee may be represented by an individual or organisation of their choosing.

Employees are guaranteed that all information will be treated with the strictest confidence.

All articles courtesy of Michael Taylor, HMT Consulting   (unless stated otherwise)

Links & Useful Resources

Employing PeopleFair Work Commission

Fair Work Commission

Helping Australians create fair and productive workplaces

Fair Work Ombudsman

Fair Work Ombudsman

The gateway to information and advice about Australia’s workplace rights and rules.

Employment Awards for the Outdoor Recreation Sector

Award Coverage in the Outdoor Recreation Sector – an overview

There are four awards that are likely to cover employees in outdoor recreation. Click each award name to view on the Fair Work Commission website.

Amusement, Events and Recreation
Miscellaneous
Hospitality
Fitness

Guides (from HMT Consulting) for:

Modern Awards

Modern Awards provide pay rates and conditions of employment such as minimum wages, leave entitlements, overtime and shift work, amongst other workplace related conditions.

The awards relate to specific industries or occupations. There are currently 122 modern awards.

These awards, with the National Employment Standards, provide a minimum safety net of terms and conditions of employment for all national system employees.

 

 

Queensland Training Ombudsman

Queensland Training Ombudsman

The QTO provides a free, confidential, and independent service to review and resolve enquiries and complaints from apprentices, trainees, students, employers and other stakeholders about the VET system.

The QTO can help you navigate the complex VET sector and find the best way to address your concerns as well as provide free and impartial advice about rights and responsibilities within the VET sector.

The QTO will look at your circumstances and assist you to resolve issues appropriately by:

  • reviewing the issue and recommending the most appropriate action to take
  • referring the complaint to another agency if they are best suited to assist
  • mediating between parties to come to a mutually beneficial solution.

The QTO also plays an advocacy role for the VET sector by reporting on systemic issues and advising the State Government on ways to improve the VET system.

Download Infosheet

Become a member

QORF welcomes applications for new Community and Green Circle Members from organisations and individuals involved in the outdoors

Learn More