Tag: Fair Work

Changes to flexible work arrangements commence 1 December 2018

Posted on by thepeopleandcultureoffice in HR Consultant Kalgoorlie, Human Resource Consultant, Human Resources, Kalgoorlie, Outsource Human Resources, outsourcing, sme, The People & Culture Office, The People and Culture Office
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As of tomorrow the new changes to requesting flexible work arrangements come into effect for all businesses under the national workplace relations system. If you are a Sole Trader eg: Jane Smith T/as Janes Cafe, an unincorporated partnership eg: Jane & Bob Smith T/as Janes Cafe or an unincorporated trust eg: Jane and Bob Smith as trustee for Janes Cafe you fall under the WA Industrial Relations Commission, so these changes do not effect you. The majority of employees in Australia fall under the Federal system which covers all constitutional corporations or in layman’s terms it is any business with “Ltd” or “Pty Ltd” after its name. All other states in Australia have referred their industrial relations powers to the Federal system but Western Australia being Western Australia has chosen to keep the State based system.

So what are the changes and how do they effect your business.

Come December 1 2018 there will be a right for certain employees to request flexible working arrangements from their employer. An employer can only refuse such a request on “reasonable business grounds”.

More specifically, the requests may be made by:

  • permanent employees who have completed 12 months of service
  • casual employees who have been employed on a regular & systematic basis for a sequence of periods of employment of at least 12 months, and have a reasonable expectation of the arrangement to continue

Eligible employees are entitled to request a change in their working arrangements if they:

  • are the parent, or have responsibility for the care, of a child who is school aged or younger
  • are a carer (under the Carer Recognition Act 2010)
  • have a disability
  • are 55 or older
  • are experiencing family or domestic violence, or
  • provide care or support to a member of their household or immediate family who requires care and support because of family or domestic violence.

Examples of changes in working arrangements may include:

  • hours of work (eg. changes to start and finish times)
  • patterns of work (eg. split shifts or job sharing)
  • locations of work (eg. working from home).

Employers must give employees a written response to the request within 21 days, stating whether they grant or refuse the request and may refuse the request only on reasonable business grounds. If the employer refuses the request, the written response must include the reasons for the refusal.

Further, it is unlawful under:

  1. The Fair Work Act to take adverse action against employees including termination of employment
  2. State & Federal legislation to discriminate against employees either directly or indirectly through their employment because of their family or carers responsibilities

Employers must accommodate their employees’ family and carer responsibilities where it is reasonable to do so. Whether a refusal to accommodate such requests is unreasonable will depend on the facts and circumstances of the particular situation. A defence is available to employers on the basis that an adjustment is not reasonable if it would cause an unjustifiable hardship on the employer taking all circumstances into account, including consideration of:

  • the requested arrangements are too costly
  • other employees’ working arrangements can’t be changed to accommodate the request
  • it’s impractical to change other employees’ working arrangements or hire new employees to accommodate the request
  • the request would result in a significant loss of productivity or have a significant negative impact on customer service.

Reasonable grounds for refusal for a small employer may differ vastly to those that are reasonable for a large, well resourced employer.

For example if the employee is in a customer facing role or manning a busy switchboard, and you are a small – medium employer with a minimal number of similar employees to provide coverage for the absence, and recruiting may be impractical given the hours of engagement, then you may be able to justify that you have reasonable business grounds. The same situation with a large employer with 20 + admin staff would struggle to provide such a justification.

Similarly a non customer facing role who can complete the bulk of their tasks online, and with minimal interaction, such as an accountant or engineer would have quite a good case to suggest their absence from the office to work from home would create minimal disruptions to the operations.

The future is now

The reality is flexible working arrangements will soon become the new normal, and not just for the legislated requirements we have now. In a recent white paper released by Employment Hero on what Australian employees want from their workplace, flexible work arrangements rated in the top 3 wants with 45% of respondents indicating it was important to them when choosing a prospective employer. The same group, when asked what benefits they would like their existing employer to introduce, overwhelmingly stated flexible work arrangements with 59% of respondents giving it priority over other benefits such as career development, financial incentives and “feel good” benefits such free massages.

The next generation crave flexibility. The Deloitte 2017 Millennial Survey reveals that “flexible working continues to be a feature of most millennials’ working lives and is linked to improved organisational performance, personal benefit, and loyalty”. Overall, 84% of millennials reported that some degree of flexible working ranging from flexible start and finish times, flexible roles and flexible locations including work from home were highly desirable.

These arrangements are not identified as “simply a nice to have” but as being strongly linked to improved performance, employee retention and loyalty. Further, the report notes that organisations that have adopted flexible work indicated any earlier misgivings that opportunities would be abused appeared to be unfounded with 78% of respondents feeling trusted by their line managers. If you would like to read more about the changing millennial workforce Click Here. I also shared my thoughts on whether the changing face of the workplace was a contributing factor to the skills shortage in residential mining and trades positions here.

The inclusion of flexible work policies into your HR framework isn’t just about millennials or working mums, as we hurtle towards a large ageing population it provides the flexibility for the ageing workforce to continue working well beyond 65, something that will become more and more a necessity with superannuation unlikely to accommodate most retirees needs into their 80’s & 90’s.

Flexibility as a workplace norm builds diverse and inclusive workplaces, it allows those who would otherwise be somewhat excluded or restricted within the workplace to be able to contribute to the organisations success, it allows organisations the ability to attract & retain talent as we see a societal shift in personal priorities. Creating a flexible and agile workplace goes beyond creating “an accommodation for working parents”, rather it’s a strategy that enables a competitive business edge in the ever changing world of work.

At The People & Culture Office you only pay for the work we undertake for you;  no annual or monthly fees; no contracts; just quality, local, service. Click here to learn more

39% of WA businesses audited not compliant with workplace laws

Posted on by thepeopleandcultureoffice in Human Resource Consultant, Uncategorized
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Earlier this year Fair Work inspectors were out and about in the Southern Perth suburbs and the South West auditing businesses for compliance to workplace laws.

Shockingly the campaign resulted in $388,261 back paid to employees and 39% of businesses found not to be complying with workplace laws, 26% of these businesses were underpaying employees and 19% were not complying with payslip & record keeping obligations.

Fair Work will audit more than 1000 businesses Australia wide this year, focusing on anonymous tips and industries & sectors with high rates of non compliance.

Other recent cases bought before the commission include;

A casual worker employed at a restaurant in Camperdown was back-paid $12,500 after Fair Work inspectors found that they had been underpaid weekend penalty rates for a period of almost three years.

The worker was not paid the correct weekend rate as required under the Restaurant Industry Award 2010, being paid only $19.56 per hour for Sunday work when entitled to rates of up to $34.23 per hour.

In another matter, the Fair Work Ombudsman received a request for assistance from a registered nurse who was being underpaid at a medical centre in Putney.

Fair Work inspectors found that the nurse, employed on a casual basis, had been paid under the wrong classification, and was also paid below the hourly rate of pay stipulated under the Nurses Award 2010.

The underpayments occurred over a period of more than two years, equating to a total underpayment of $15,605.

Fair Work inspectors found that the employer was unaware of the worker’s correct classification and that they were not familiar with the Award.

A business operator who told his employee to “seriously, f**k off…” when the worker asked when he would receive money owed to him, has been penalised $21,500.

Judge Grant Riethmuller also penalised Mr Pulis’ company, Pulis Plumbing Pty Ltd, a further $100,000 after a plumber’s labourer, who was 20 years old at the time, was underpaid by $26,882 over just three months.

The worker was underpaid when he was employed by Pulis Plumbing to perform work in the Melbourne, Geelong and Bendigo areas between September and December, 2014.

Mr Pulis and his company told the employee he was being hired as a second-year apprentice, but never formally signed the employee up as an apprentice.

Mr Pulis and his company also paid the employee an apprentice rate of $12.18 an hour, despite knowing they were lawfully obligated to pay the employee much higher rates because they had not signed him up to an apprenticeship.

A Perth security company has been penalised in Court for underpaying its guards more than $200,000, with a Judge saying the company’s claim that it thought overpaying in relation to minimum rates would “counteract” other rates of pay was a “lame excuse”.

A penalty of $81,270 has been imposed against Rockingham-based Sureguard Security Pty Ltd in the Federal Court, as a result of legal action by the Fair Work Ombudsman.

In addition to the penalty, the company has back-paid 22 security guards a total of $205,408 it underpaid them between December, 2014 and January, 2016.

Underpayments of individual workers ranged from $227 to $20,174.

Don’t risk bankruptcy through penalties and back payments of employees, email us today at simone_pickering@iinet.net.au to ensure your processes are compliant.

Based in Kalgoorlie, The People & Culture Office is an independent HR Consultant who can partner with you to offer a one stop HR solution, we only charge you for the work we perform; no contracts, no annual or monthly fees, just quality service. Click here to learn more

Annual Leave – do you know your obligations

Posted on by thepeopleandcultureoffice in HR Consultant Kalgoorlie, Human Resource Consultant, Human Resources, Kalgoorlie, The People & Culture Office, The People and Culture Office, Uncategorized
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It feels like it’s minus eleventy seven outside and my Insta feed is full of fabulous people holidaying in the European sun, so it seems like a good time to talk about annual leave and the obligations of employers and employees.

The Fair Work Act National Employment Standards and Minimum Conditions of Employment WA provides for all permanent employees in Australia to be entitled to paid annual leave, casual employees do not accrue leave, but are instead paid a casual loading of 25% on top of the ordinary hourly rate to offset having to take unpaid leave.

Annual leave is paid at the employees current hourly rate, that means if an employee receives a pay increase any accrued leave is paid at the new rate of pay, the leave isn’t broken down to old rate / new rate. If a public holiday falls within a period of annual leave, that day is not a day of annual leave. Unused annual leave is cumulative and paid out on termination of employment.

All full time employees receive the equivalent of 4 weeks annual leave per year, with shift workers receiving the equivalent to 5 weeks per year. The definition of shift worker varies dependant on the applicable Award or Agreement so in some cases the fact you work nights or weekends doesn’t necessarily define you as a shift worker for this purpose. Part time employees receive annual leave pro rata based on the ordinary hours of work. Annual leave is accrued per pay based on your ordinary hours of work and it’s best practice for the amount accrued and the balance to be contained on the employees payslip.

Some Awards & Agreements also have the provision for Leave Loading, Leave Loading is an amount of 17.5% of the ordinary hourly rate paid in addition to the paid annual leave. Originally introduced to supplement the wages of employees going on annual leave who relied heavily on overtime, Leave Loading is now a common inclusion in most National and State based Awards. Therefore if you aren’t paying Leave Loading to an employee employed under an Award who is entitled to it, you must ensure their hourly rate is high enough to compensate.

FAQ’s

Q.  AN EMPLOYEE WANTS TO TAKE A PERIOD OF UNPAID LEAVE TO GO ON A HOLIDAY BUT THEY HAVE NOT ACCRUED SUFFICIENT ANNUAL LEAVE.  DO I HAVE TO APPROVE THIS? WHAT DO I DO IF THE EMPLOYEE SAYS THEY ARE GOING ANYWAY?

You do not have to approve unpaid leave to take a holiday, though, if the employee has a good work history, and it wouldn’t disadvantage the organisation to have them away from work for the period of time you could offer Leave Without Pay to allow the employee to take their holiday.

If the employee threatens to take the leave anyway, you can warn the employee that you will terminate their employment if they take an unauthorised absence from work.

Q. AN EMPLOYEE HAS TAKEN APPROVED ANNUAL LEAVE, HOWEVER, THEY FALL ILL/ARE INJURED DURING THIS PERIOD. IS THE EMPLOYEE ENTITLED TO BE PAID ANNUAL LEAVE OR PERSONAL LEAVE FOR THAT PERIOD?

Depending on how section 89 (2) of the Fair Work Act is interpreted, there is no strict legal entitlement for an employee to take personal leave during a period of annual leave. However, there is room for HR intervention. If the employee can satisfy the notice and evidence requirements of the personal/carer’s leave provisions of the Fair Work Act, then yes, that period of time can be taken as personal/carer’s leave assuming that the employee has an available personal/carer’s leave balance.
So in many cases where a person becomes sick during annual leave, a decision is made on the basis of evidence and good HR judgement to cancel the annual leave and replace it with personal leave.

Q.  WHAT FACTORS ARE TAKEN INTO ACCOUNT IN DETERMINING WHETHER AN EMPLOYER CAN “REASONABLY” REFUSE A REQUEST FOR ANNUAL LEAVE?

This is not defined in the Fair Work Act.  However, we expect that it would depend on the notice the employee has given of the intention to take leave, the notice the employer has given of the refusal, the grounds for the refusal and the impact that the refusal will have on the employee. My suggestion is if you have a leave policy, or the notice period for the application of leave is mentioned in an Award or Agreement, and the employee has complied with the notice period, unless the refusal is on strong “reasonable business grounds” I would not recommend declining the leave.

Q. CAN I DIRECT MY EMPLOYEES TO TAKE ANNUAL LEAVE AND IN WHAT CIRCUMSTANCES?

You can require employees to take annual leave if the requirement is reasonable.  Factors determining reasonableness include the reasons for imposing the requirement and the notice given of the requirement.  It will be reasonable during Christmas shutdowns or when accrual is excessive (provided the employee understand when leave is excessive and is given reasonable warning that he or she needs to run down accrual). Modern  awards and enterprise agreements often provide clauses dealing with directions to take annual leave so these should be consulted when considering a direction of this nature.

Based in Kalgoorlie, The People & Culture Office is an independent HR Consultant who can partner with you to offer a one stop HR solution, we only charge you for the work we perform; no contracts, no annual or monthly fees, just quality service. Click here to learn more

Can what you do out of work impact your employment?

Posted on by thepeopleandcultureoffice in HR Consultant Kalgoorlie, Human Resource Consultant, Human Resources, Kalgoorlie, The People & Culture Office, The People and Culture Office, Uncategorized
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In short yes – with some considerations.

These days, with constant access to social media, out of hours conduct can ‘go viral’ and attract a wider range of negative publicity for both the employee and potentially an employer. The issue in these kinds of circumstances is whether the employer would have the right to take any action against the employee, with the broader issue being: when does out of hours conduct justify disciplinary action, which may include dismissal? 

In most cases the employer’s rights will depend on the particular facts, including the employment contract, employment policies and the job requirements, out of hours conduct is more likely to attract and justify disciplinary action where the employee brings the employer into disrepute (or engages in action which has the potential to do so). This also applies where the employee is convicted or charged with a criminal offence – particularly where such a charge or conviction directly or indirectly prevents the employees from performing their duties.

As with all disciplinary matters the outcome depends on the individual incident, and, there’s the issue of the impact on the organisation’s interests by the employee’s conduct. The following factors will need to be considered:

  • What is the potential impact of negative publicity?
  • Could the employee’s actions harm relationships between the organisation and its clients, suppliers or sponsors?
  • Could commercial arrangements with those parties be cancelled as a result?
  • Could there be an impact on the organisation’s ability to source new customers, clients or sponsors?

While the actions or behaviour of an employee may not be related to work, the idea of bringing the employer into disrepute through the employee being well known or easily identified as an employee of the organisation have been relevant factors in recent cases. Put simply the outcome for the employee depends on impact their behaviour has on the employer.

Takeaways for employers;

  • Ensure you have thorough policies in place, train your employees on them and most importantly – follow them
  • If an issue arises, ensure you afford the employee in question procedural fairness
  • Treat each case on its merits

Takeaways for employees;

  • Strengthen your social media privacy settings
  • If you are going to update your profile with your position & employer be VERY mindful of what you post on groups, or who you tag in your photo’s and status updates. Thanks to Facebooks’ algorithms your post can appear in the newsfeed of their friends list as well
  • Be mindful of your conduct overall when outside of work, particularly when driving fleet vehicles, when in uniform, at work events or if you are well known around town as being associated with your employer

Read on below for more information including recent examples of cases to appear before Fair Work. To put in place clear and comprehensive policies regarding Social Media use, Bullying, Discrimination & Harassment and Code of Conduct contact The People & Culture Office today via email simone_pickering@iinet.net.au

Is what an employee does outside of the workplace and work hours impacting their employment?

Based in Kalgoorlie, The People & Culture Office is an independent HR Consultant who can partner with you to offer a one stop HR solution, we only charge you for the work we perform; no contracts, no annual or monthly fees, just quality service. Click here to learn more

Minimum pay increases & how they affect your business

Posted on by thepeopleandcultureoffice in HR Consultant Kalgoorlie, Human Resource Consultant, Human Resources, Kalgoorlie, The People & Culture Office, The People and Culture Office
Looking to take the guess work out


On 1 July 2018 all employees under both the Federal & State pay systems will receive an increase to their minimum rates of pay. Last week the WA Industrial Relations Commission increased wages by $18 dollars a week, whilst the Fair Work Commission increased wages for Federal system employees by $24.30 per week.

So how will this affect you? Well it depends on whether you are a State or Federal system employer & the types of people you employ and how you pay them.

If you are a Sole Trader eg: Jane Smith T/as Janes Cafe, an unincorporated partnership eg: Jane & Bob Smith T/as Janes Cafe or an unincorporated trust eg: Jane and Bob Smith as trustee for Janes Cafe you fall under the WA Industrial Relations Commission. The majority of employees in Australia fall under the Federal system which covers all constitutional corporations or in layman’s terms it is any business with “Ltd” or “Pty Ltd” after its name. All other states in Australia have referred their industrial relations powers to the Federal system but Western Australia being Western Australia has chosen to keep the State based system.

The increase will affect any employee being paid as per award rates ie: junior employees, apprentices, administration employees, retail and hospitality. Even if you pay above award rates it’s still best practice to cross check your hourly rates with the award as minimum pay rates have increased by 6.8% since 1 July 2017.

Lets look at the impact for a Receptionist or Administration employee employed under the State based system. ** Please note the Department of Commerce WA has yet to release the 2018 pay rates so I have added $18 per week to the 2017 rates.

The relevant Award covers 6 Grades which increases the pay rate based upon the complexity of the role and the expectation of the employee to work autonomously within their position and years of experience.

The minimum pay rate for a basic Administration Officer / Receptionist will increase to $20.05 per hour within the first year of employment, this position is described as having basic duties & computer skills such as basic data entry, answering phones and opening mail. This employee works under supervision within established routines and procedures.

A Grade 2 Administration employee’s pay would increase to $21.05 per hour within the first year of employment, this position is responsible & accountable for their own work and works under general supervision. They typically would be responsible for operating a switchboard, manipulating databases & spreadsheets, assist in the maintenance of financial records & journal and applies existing workplace knowledge to their work.

Most administration employees would fall under Grade 3, these employees typically process payroll, are responsible for a number of different duties where they apply a working knowledge of the organisations functions, locations and clients, they are responsible and accountable for their own work, which is performed within established guidelines and they exercise limited discretion within the range of their skill and knowledge. Supervision is limited. The pay rate for this grade will increase to $21.54 per hour within the first year of employment.

All rates quoted are for a 38 hour week, any hours worked in excess of that would incur penalty rates, plus a location allowance for regionally based employees.

As you can see from the above determining the relevant award grade is not a straight forward process, though it can be made easier by ensuring you have well constructed job descriptions in place detailing the position responsibilities and expected skills and knowledge to effectively perform the role. Incorrectly determining award coverage, or assuming that there is no award which covers an employee can result in underpayment claims against an employer. The maximum penalties for underpaying staff are $54,000 for a corporation and $10,800 for an individual. In 2014-15, the Fair Work Ombudsman recovered $22.3 million in back pay for over 11,000 workers. To avoided exposing yourself to unnecessary risk we recommend that employers seek advice about award coverage, prior to employees commencing employment to ensure that they get it right from the outset.

Based in Kalgoorlie, The People & Culture Office is an independent HR Consultant who can partner with you to offer a one stop HR solution, we only charge you for the work we perform; no contracts, no annual or monthly fees, just quality service. Click here to learn more