This is one of those posts when you have a lot to say but not enough on each topic to justify a whole post on its own 😂
Just bits and pieces that you need to know about, so here we go.
General Protections at Work & Adverse Actions
Are your management actions lawful?
General Protections is a section under the Fair Work Act to protect employees from unfair treatment for exercising a workplace right such as enquires about their pay, working conditions or engaging in industrial action.
Adverse Action is the conduct undertaken by the employer to contravene a general protection. Adverse Action can include treating an employee unfairly, assigning duties to disadvantage an employee, passing the employee over for a promotion or termination of employment
The Fair Work Commission can impose penalties of up to $12,600 for an individual and up to $63,000 for an organisation plus compensation to the employee
Flat Rates of Pay
Offering flat rates of pay are commonplace in the Goldfields, however, what a lot of employers don’t realise is that in order for a flat rate of pay to offset Award terms and conditions such as overtime, the contract of employment must contain an offset clause. Without such clause (or a contract of employment) that pay rate is subject to the full Award T&C’s in their entirety ie: penalty rates, leave loading etc
An additional point – when adding offset clauses to your contracts of employment, you don’t get to pick and choose which parts of the Award you wish to keep and what parts you wish to offset, so if you are offsetting overtime you offset every reference to overtime in the Award. Ordinary Hours become the normal hours of work, even when in excess of 38 hours per week, and as a result leave accruals and superannuation will be impacted.
Inherent Requirements
What is it? It’s the essential criteria to fulfil the skills, qualifications and physical capacity of the job. It is the legal standard an employer must satisfy in relation to decisions surrounding recruitment and ongoing employment.
Scenario – It’s a requirement of the position that an employee be deemed medically fit for employment / entry to a clients site. The employer doesn’t supply a job description stating the requirement to meet the medical criteria. Rejection or termination of employment based on failure to meet the minimum medical requirements becomes legally fraught and the employer is exposed to discrimination claims as a result
Scenario- An employee is required to hold a valid C class MDL, the employee loses his license for an extended period which causes difficulty for the employer to assign work tasks that ensure the employee is productive. The employer terminates the employee but without the protection of detailed job requirements and policies the employer is left exposed to an unfair dismissal claim
The takeaway – Job Descriptions are more than a list of duties, they play a significant role in establishing the legal & essential criteria of the employment relationship.
Payment for training, inductions and other tasks outside of work hours
Long story short; if you want an employee to do something they must be paid for it.
This also includes attendance at team meeting or arriving early / staying late to open and close.
The test is, if it’s compulsory then the employee is paid for their time, some business owners will elect to allow the employee accrue time in lieu (TIL) in place of payment. In these instances the employee must receive TIL equal to what they would have been paid – the employee can’t be worse off.
An example is if your employees work a standard day then are required to be on hand at an after hours event. As they had already worked their standard work day any additional hours, if paid, would incur penalty rates. Therefore the TIL is accrued on the same basis ie time and a half, double time etc.
There are slight variances between Awards so it’s always best to seek advice on how extra curricular hours can impact your business
Employment Law & people management is a complex beast, if you need assistance navigating your way around we are on hand to provide support & add value to your business
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It’s time for HR to move beyond policies, practices and processes, HR’s value proposition to business is to ensure HR professionals and their practices’ produce positive outcomes for key stakeholders, employees, line managers, customers and investors.
