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Recent FWA Decision Stresses the Importance of a Social Media Policy

2011-12-22T11:53:00.006+11:00

A decision handed down on Monday 19 December by FWA has once again shown the need for organisations to have a social media policy in place. In this case a former Linfox employee was seeking reinstatement to his position after being terminated for comments made on his Facebook page. Commissioner Roberts commented on the need for a social media policy when, whilst lamenting the fact that Linfox did not have one, he commented that:

"In the current electronic age, this is not sufficient and many large companies have published detailed social media polices and taken pans to acquaint their employees with those policies."

In this case, the employee, Mr Stutsel, was terminated after an investigation into certain comments that were made on his Facebook page. Mr Stutsel was employed by Linfox as a truck driver and had been with the company for approximately 22 years. During that time his employment record was virtually blemish-free, with no disciplinary matters ever addressed with him. Prior to his termination, his wife and daughter set up a Facebook account for him, which he had been using fairly frequently. He believed that his postings on Facebook were private, as that is what he was told by his wife and daughter, and stated that he did not know how to check and change his privacy settings anyway.

As it turned out, his Facebook wall was not as private as he believed, and it came to light that various comments, later claimed to be derogatory and offensive in nature, were seen by other employees. In short, these comments concerned a few Linfox employees and took place over an extended period of time. Linfox conducted an investigation and terminated him due to the nature of the comments made.

The Commissioner ultimately reinstated Mr Stutsel and also awarded him compensation for the difference in his pay for the period that he was not employed by Linfox. In making his decision, the Commissioner noted that since Linfox had no social media policy in place, it was hard for them to be able to demonstrate that they had fully educated employees on what the accepted standards of behaviour may be. The Commissioner further found that the nature of the comments made, whilst childish and immature, were more in the flavour of a conversation taking place in a pub or café, although admitting that it was in an electronic format.

Lessons for Employers

The lessons for employers are:

to ensure they have a comprehensive social media policy, tailored to their work place, to rely on in case something like this occurs (see our recent article "Social Media and Unfair Dismissal Guide for Employers) http://blandslaw.com.au/toolkit/employees/social-media-and-unfair-dismissal-guide-for-employers/

Not only that, but employers need to be able to demonstrate that the employees are aware of the contents of the social media policy,
and that there is a clear process in place for what happens when a breach of the policy occurs.

For further information and a full description of our social media law services, including policy development and implementation, you can visit our website. http://blandslaw.com.au/services/social-media-law/

Qantas and the Unions-part 2

2011-11-18T12:05:00.005+11:00

This is the second part in a series on the dispute between Qantas and the Unions.You will remember that in the first part, I took you through the background as to what Qantas did, and why, and looked at why this tactic is unusual and unlikely to apply to almost any other employer.

Today we look at what the parties are fighting over.Effectively, Qantas is fighting on 3 different fronts with 3 different Union Groups.

One is with the Long Haul pilots.The central theme to this dispute is not over pay and conditions, but over job security.The pilots are fearful that Qantas will bring in overseas pilots to fly these routes and pay them cheaper rates than they are paying the current staff. The Pilots want Qantas to agree that only Qantas(and not overseas pilots) will fly Qantas coded routes. Job Security issues are legislated by the Fair Work Act as being a matter that is legally capable of being bargained and taking protected industrial action(strikes etc) over.

Qantas are refusing, saying that in oder to compete in the international market it must have wage rates that are competitive.There is also an unresolved claim for wages, but that does not appear to be a sticking point(this is similar on all 3 disputes)

The second front is the Engineers , who perform maintenace on the aircraft.The Union, similarly, is bargaining over job security issues, specifically that they want Qantas to commit to performing maintenence on its A380 planes in Australia and not in Asia.Qantas, again, is refusing on the basis that it needs flexibility in order to be competitive.

The third front is with the TWU who are respresenting baggage handlers and ramp service employees, such as caterers.They are seeking assurances that, amongst other things, Qantas will limit outside contractors to 20% of the total workforce and guarantee that they will not be paid less than current employees.This is also a job security type claim and Qantas are refusing to be bound to such conditions that would retard their ability to cut costs.

Ultimately, this is a fight about controlling costs.Qantas want to flexibility to cut its costs where necessary and the unions want to limit this control so that its members do not lose their jobs through outsourcing.

All parties have a lot to lose at Arbitration, if it goes that way, and it will be interesting to see whether they do a deal to avoid an uncertain result.

From a legal standpoint it will be interesting to see which way Fair Work Australia lean, on the central issue of who the ability to control decisions about jobs in the workplace.

Qantas and the Unions

2011-11-03T09:55:00.003+11:00

Hi everybody.

This is the first post of a series in which look at the Qantas dispute and its effect on the wider economy. I will look at it from several different angles, from the implications for other employers, to the political machinations that come from it.

Today, I will start with a bit of an overview of the background to the dispute and how the whole industrial system works in these situations.

Remember this is an informal blog and I don't intend to cover the issues in significant detail. Any implications for the business you are in should be the subject of specific advice whether from us, or some other trusted professional.

For starters, Qantas has for years had collective agreements(also know as EBAs, enterprise agreements, collective bargaining agreements and others) in place covering most of its employees. There are actually many collective agreements covering the workforce as they cover different tyes of employees from pilots, to engineers, to ground staff such as baggage handlers and others.

These collective agreements have fixed terms which are usually between 3 and 5 years.

The dispute is being fought on 3 different fronts by Qantas, based on 3 different collective agreement negotiations, with 3 different unions. The concerned employees are the long haul pilots, engineers(maintenence) and the baggage handlers/ramp services employees.

The important thing to understand here is that all 3 groups have had their collective agreements expire and the parties are in negotiations for new agreements. The fact that they are in negotiations and the collective agreements have expired allows them to take what is called protected industrial action. They have taken such action as stop work meetings, bans on overtime (meaning services are disrupted) and general go-slows. It also allows Qantas to do what they did - announce a lockout, meaning all staff were banned from coming to work with no pay.

For Qantas, such industrial action has been going on for most of this year, which led in their view, to a situation where they were losing significant amounts of money because of the uncertainty of the services that could be provided. Customers were using competitors and they came to a decision to "cut to the chase" and bring things to a head with a full lockout.

This had the desired effect, as the Government stepped in and requested the industrial umpire(Fair Work Australia) to make an order that both parties terminate industrial action and return to negotiations. If no agreement is reached within 21 days, FWA will then arbitrate and make a decision themselves which will be binding on both parties.

The basis of the intervention is important, as it serves to illustrate why most employers will not be able to rely on similar action in their disputes. The Government used section 424 of the Fair Work Act which allows them to seek an order to terminate where the dispute may cause significant damage to the Australian economy.

So with this in mind, what does this mean for employers, regardless of what industry you are in?

If you are an employer that has a collective agreement that has not expired, you need not fear this type of action being taken. Whilst the collective agreement is in place, employees are barred from taking any form of protected industial action.

If you are an employer that is in a similar position to Qantas (expired agreement), industrial action can be taken against you whilst employees are negotiating a new agreement. The problem for most employers is that it is highly unlikely that the Government will intervene, as they did with Qantas, because it would be unlikely that it could be successfully argued that the industrial action is causing significant damage to the economy. Whilst the employer can make such an application, history has shown that the bar is extremely high for such applications and most fail to reach it.

Lastly, if you do not have a collective agreement in place, your business may be exposed to industrial action. If this is a possibility (many industries are nowhere near as unionised as others), you should consider implementing one.

Next up, I will look at what the reason behind the dispute, in effect what they Qantas and the Unions are fighting about.

Law Society Journal

2011-11-02T10:24:00.003+11:00

Shameless plug-for those of you that get the Law Society Journal, turn to page 20 where you will see an article on lawyers and bloggers, and guess who is there?

Working on a Qantas themed blog, so stay stuned-should be out later today......

Work Injuries and Dismissals - Be Careful

2011-10-07T14:11:00.007+11:00

We are getting a lot of enquiries lately from employers who are looking to terminate under performing employees. Nothing new there - however there is a twist.

The problem is that during the performance management process, including warning letters and so forth, the employees in these cases are putting in claims for compensation for stress and the like, relating to bullying and harassment.

The general allegation you see is that the employee has been bullied and that the employer is just looking for an excuse to terminate. Now, I should make it clear, that these claims are not always made up by the employee and there a lots of situations where there are valid bullying claims, however from an employer's perspective the claim of bullying may be nothing more than attempt to circumvent to performance management process. What happens is that the employee goes on either sick leave, or makes a claim for workers compensation due to stress which effectively stops process because the employee is longer at work.

If this happens, the employer needs to be very careful if it intends to continue with the dismissal process so that it does not fall foul of both the Fair Work Act and the relevant State workers compensation legislation. There is a mine field of issues that could cause an adverse action or discrimination action to be brought if not done the right way.

Furthermore, if a spurious claim for workers compensation is made, it is vital that employers take a pro-active approach with Insurers IMMEDIATELY, so that the Insurer does not accept the claim because of lack of information.

Changing tack, a big congratulations to my Sea Eagles on taking the title for 2011.Was a little worried with 10 to go, but they thoroughly deserved their 8th title, all time. Th.e only disappointing part was the presentation with Brett Stewart I am as big a Manly fan as there is however, as I tweeted earlier this week , its time Brett Stewart pulled his head in and got on with life. What happened to him with the criminal allegations was not David Gallop's fault - it's time to move on.

Onto NFL, and yours truly has opened a big lead in the tipping comp, getting 11 of 16 last weekend against the spread.This week I like the 49ers at home giving 1.5.TK like his Packers at Atlanta by more than 6, however given his record to date, you may want to steer clear!!

Flexible Work Arrangements-It's Easy if You Try

2011-09-23T15:57:00.003+10:00

Excuse me while I get up on my high horse for a moment.

I read today in one of the national newspapers some opinions that Employer's looking at the option of working from home for some of its employees may hit a hurdle in the face of OHS issues.

I disagree that Employers should be "skittish" in the light of recent cases involving injuries whilst working away from the office.If you look at what those cases were about, it had very little or nothing to do with having a home office.

I am aware of the OHS angle ofcourse, as it is part of what we advise on here at Blandslaw.But I cannot help feeling that this is going to turn into just another excuse for some companies to throw up their hands(as some have done over the past 20 years, and that includes many colleagues of mine) and say "its all too hard".

Sure, Employers need to ensure that there is a safe work environment and there are other important cosiderations such as confidentiality, however these can rather easily be overcome.After all, its not like we are talking about factories or building sites here.

The main reason Employers have balked at this option over the past decade or so is, in my view, a reluctance by some to get over the mental hurdle that if you are not there(at the office), you are not working and cannot be managed.

I could go on and on about the benefits of having people work from home and there are not too many situations where this cannot be put into practice.We at BlandsLaw are are living, breathing example that it can work, if you are prepared to flexible.And the forward think Employers(and I know some of these) are way ahead of the game here.

OHS is critical, ofcourse, but let's not use this as a crutch.

Onto the weekend and its hotting up in NRL land with the winners of this week's games meeting in the big one next week.My mighty Manly Sea Eagles are still alive and take on the donkeys(err Broncos) tonight.The maroon and whites are favoured and so they should be!The Storm should be too good for the Warriors in the other game.And, speaking of the Storm, does anyone else agree that it is time to put an * next to the Dragon's win last year as the Storm were not allowed to compete.?Given the Storm's performance this year and the fact that they dominated for most of the past 5 years before that, it raises some questions.......

And I have not blogged since the NFL(Gridiron) started a few weeks back.As old readers of this blog will attest, I make, along with my mate "TK" a "lock of the week "call on one particular game(or 2).With the caveat that you should only bet what you can afford to lose, we like Green Bay giving the Bears 3.5 at Chicago and the Saints giving 4 to the Texans at home.And by the way, your truly has open a wide early lead in the tipping comp-I think I lead by 7 after 2 rounds.

Good luck and GO MANLY.

When Will Employees Learn - Facebook is Public!

2011-08-29T08:41:00.004+10:00

Guest post by Christine Broad, solicitor, BlandsLaw

Yet again Fair Work Australia (FWA) has this week dealt with another unfair dismissal claim relating to the use by an employee of Facebook to post inappropriate coments about his employer.

The employee had an issue with non-payment of his commission and went on what has been described as an "expletive-filled"..."aggresive anti-work rant" on his Facebook page. The employee claimed that the postings were made from his home computer and out of work hours and therefore not relevant to his employment, however FWA rejected this submission and found that this did not make any difference; yet another example of the blurring of the line between work and private lives where social media is concerned.

Deputy President Deirdre Swan found that it was invevitable that the employee who was being targeted would find out, regardless of the fact that she was not a "Facebook friend" of the employee, as there were 11 other employees who were Facebook friends, and sure enough it didn't take long for the supposedly private comments to become public.

The employer in this case did have a policy dealing with the need for employees to be courteous and polite, as well as harassment and bullying policies, although due to the extreme nature of the coments in the case, FWA comented that comon sense would dictate that this is unacceptable behaviour however you view it.

Interestingly though, thte employer did not have a social media policy - something we believe every employer should have - so that there is no argument about what is or is not appropriate, and there is a clear understanding of the fact that social media sites are not only PUBLIC but are also PERMANENT. In our technological age social media is everywhere, whether we like it or not, and the responsible thing for employers to do is to acknowledge that and manage it in the best way they can. The more progressive businesses are using social media to their advantage, rather than trying to exclude it from their workplace, which in my view is the smart way to deal with it as it's not going away any time soon.

Unfair Dismissals-How is it working?

2011-08-26T09:07:00.004+10:00

There was an article in the Fin Review earlier this week by Paul Oslington which looked at how unfair dismissal laws were working under the new regime.The end result of the piece was that there not not enough data to make a judgment either way.I will leave it to others to examine the data, but this is one person's perspective who acts for Employers of varying sizes, large and small, who has been invloved in both the new regime and previous ones.

Yes, unfair dismissal claims appear to have increased, however I suspect that this is more to do with the fact that 85% of all businesses were exempt from such claims during the time of Workchoices so I don't believe there is any evidence that demonstrates that it is easier to "win" for employees under the new laws.

The next point is that the vast majority(I would say 95%) of claims never go to hearing because they resolve well before that point.There are several reasons for this, the biggest of which is that it costs a lot of money for the parties to proceed with these claims.For the Employer there is also the valid consideration of not only paying legal fees but their timey time being spent on dealing with the issues in the case, when they could be doing something more productive.

This is coupled with the fact that, for both sides, even if you "win" the case, the other side will, in almost every case, not have to pay your costs.Therefore there is very little incentive for an employee to engage a lawyer or advocate if, at the end of it all, the money they get from the victory goes straight to the lawyer.And the same applies to the employer-even if they"get up" they are still facing a bill from their lawyer.

All of this encourages settlement, which is the stated aim of Fair Work Australia.Employers have valid concerns about paying "go away money" and those concerns are more valid where the employee "tries something on" when they were dismissed validly.However, my experience is that these types of sitiations, where the Employer has done things correctly, are few and far between.

So, what's the solution?My strong view is that Employers can help themselves reduce these claims by dealing with the dismissal in a legal and compliant way by having systems in place and giving employees and opportunity to fix up performance.Also, by only using summary dismissal in appropriate situations and by doing things "by the book".Too many employers, large and small, fall down in these areas time and time again.Sure, there will still be "try on" claims, but these will still be the small minority.

On another note, good luck to my Sea Eagles tonight as they take on the Storm in the top of the table clash.A preview to the Grand Final?Let's hope so......

And its fantasy football time again(the US version) and me and my mates have the draft this weekend.Looking forward to it and fingers crossed I don't stuff up my picks...again.

Retailers Hancuffed by Out Dated Laws

2011-08-08T07:56:00.004+10:00

This had been a bug bear of mine for a long time , having worked with Retailers large and small for many years now, and the recent productivity report into the Retail Industry has served to, hopefully, bring the problem into the spotlight.

The issue I am talking about is the wage rates that Retailers must pay staff who work weekends and late nights.Staff who work Sundays, for example, get paid at double time rates, whilst their colleagues that do exactly the same thing on a Monday to Friday get paid at normal rates.This is crazy.

This system is a legacy from the times of , literally, 100 years ago when society was entiely different when it came to the question of the attitudes of many things, including, for this discussion the question of working on weekends.

There are many differences between the life and times of today and those when these laws were drafted.Three important ones stick out.Firstly, it was highly unusual for someone to have to work on a weekend and if they did then it was fair enough that the employee be rewarded for having to do so.Secondly, and the points are entwined, most businesses were not open on a weekend anyway.

Things are different now.I can still remember in NSW when I was young when the shops would close at midday on Saturday and were never open on Sundays.Nowadays, not only do the public expect shops to be open on weekends, but Landlords in large shopping centres make it a condition of the lease that Retailers do so!

The third point is that many employees are happy to work on a Sunday and it is not an inconvenience for the vast majority of them.Many employees in the Retail Industry work part time and either have several jobs , or are students.Many of the them only have time to work on weekends because of the committments during the week.

So where does all of this leave us?Retailers are copping it from all angles.They are contending with the rise of the online retailers, the dollar makes overseas products much cheaper, and because they are required to open on weekends, they are being hit with unstainable wage costs into the bargain.

The Government must act immediately on this.Penalty rates must be removed, apart from work on public holidays.Allowances such as meal breaks and clothing must be reformed, as they are currently open to wide abuse.

Bill Shorten indicated, and I am paraphasing here, that people should not delude themselves by thinking that axing penalty rates will fix the problems Retailers are having.Perhaps not, but it is a significant part of the problem and will go a long way to assisting retailers to keep their doors open, and that has got to be a good thing for all concerned.

what IS in the course of employment?

2011-08-05T15:15:00.004+10:00

Test cases are always interesting-well at least for this writer, being a lawyer and all, but there is one going on at the moment which probably has sparked a much higher degree of interest.

You may have seen it reported in the news-a female employee(name supressed, for reasons that will be obvious as we explain) is complaining that she was injured at work.Nothing new there, everyone agrees.....

It is what she was doing and where she was when she was injured that is the cause of controversey.You see, and these facts are uncontested, the employee was having sex with "an acquaintance" in her hotel room whilst on a business trip.In doing so, she injured herself when "a wall-mounted oyster light" fell on her head during sex.....

The competing arguments are as follows.The employee says that she was required to stay overnight on the business trip, and therefore anything that happened would be considered "in the course of employment".

The employer is saying that the injury occurred when the employee was not performing an ordinary activity connected with work.

So the issue will come down to this-was the employee performing an ordinary activity connected with work whilst she was in her hotel , to which she had travelled from home, the night before the work meeting?

I suspect that she was not, but as they say, don't let the facts (or law in thise case) get in the way of a good story!

Impact of the Victorian Workplace Bullying Laws - Guest Blog

2011-08-01T10:31:00.002+10:00

Back in April I wrote about the Victorian government introducing legislation that imposed potential jail terms for serious workplace bullying. At the time there was uncertainty about what impact this legislation would have and how it would be applied however 3 months down the track the impact is starting to show.

Rachel Wells of The Age discussed this in her article on Sunday titled "Most Workplace Bullying Claims Fall Short"- the upshot is that while bullying complaints have more than doubled, very few were referred on to the bullying response unit and only a small percentage of those resulted in an inspector visit to the workplace.

There are differing views on whether the increase in complaints is a result of the legislation or just an increased awareness of bullying and the high profile cases that make it into the media. It appears that many of the complaints would be better dealt with either by internal procedures where the organisation has clear and concise policies around bullying and harassment (something all employers should have), or by complaints to external agencies such as Fair Work Australia or Human Rights Commission where the incident is not as serious as contemplated by the bullying legislation which refers to "repeated unreasonable behaviour…".

The flip side of the coin is the potential abuse of the bullying legislation by employees who do not like the way things are going for them at work. Of course genuine situations involving bullying need to be appropriately dealt with but we had one situation recently where an employee was claiming to be "bullied" because he was being told by his manager that his performance was not up to scratch and he believed that the manager had some hidden agenda. On delving a little deeper we found the manager had a well documented record of specific written warnings given to the employee which referred to particular behaviours all within the job description of the employee (such as not providing reports to the manager and not attending meetings he was required to attend). The lesson here for the employer is to always ensure, when dealing with undesirable employee performance or behaviour, that you document everything and preferably have another person present when having face to face conversations with that employee.

This is certainly an area of behaviour in the workplace that needs careful attention and it is good to see that both employers and the law-makers are taking it seriously.

Guest Blog by Christine Broad, Solicitor, BlandsLaw.

Landmark Discrimination Case

2011-07-28T15:31:00.005+10:00

There is a Bullying based claim being pursued in the Federal Court sat the moment. Nothing new there-as discussed in this space bullying claims are on the rise.

What is new, and potentially new law, is that the female Plaintiff (Kirsty Fletcher) is claiming to have been discrimated against as a result of other male workers looking at "hardcore pornography" that had been sent to them by a manager in the business. Note that there would not appear to be any allegation that Kirsty Fletcher saw, or heard, this material but that she was aware that it was being looked at on computer screens in the office.

The Employer, Airservices Australia, are seeking to argue that having such material on computers is not of itself a ground for discrimination under the Federal Sex Discrimination legislation. I suspect their point will be that, whilst it may be a breach of workplace policy to view such material at work, it does not amount to discrimination of another employee, who was not exposed to this material.

Fletcher's lawyer has pointed out that there are precedents for Sex Discrimination claims where posters of a pornographic nature have been up on walls etc. This is true, however it is another larger step to parlay that into a breach of the laws if the complaining employee was not subject to the material.

It will be interesting to watch this develop and I will keep you posted.

Is the Fair Work Act Fair for Small Business?

2011-07-26T13:43:00.004+10:00

Guest post by Christine Broad, Solicitor.

In a previous article we wrote about the increase in the number of unfair dismissal claims since the introduction of the Fair Work Act in 2009. (see "Unfair Dismissal Guide for Employers" dated May 2011). Yet again we are hearing this discussed in the media having just passed the 2 year anniversary of the introduction of the Act.

In particular it is the application of the Act to small businesses that is in the spotlight at the moment. It is our experience, and this is reflected in recent commentary, that small businesses are struggling with compliance given the number of modern awards and the sometimes daunting task of calculating the correct application of the award, particularly where there are also transition provisions that apply.

On 15 July 2011 a case came before the Federal Magistrates Court regarding the provision of payslips to a former employee of a small business. The Federal Magistrate was critical of the Fair Work Ombudsman for its "heavy handed approach" to the small business owner, and suggested instead that it would have been more appropriate to assist the employer with guidelines as to how he could establish a compliance programme. Instead of enquiring as to what systems the employer had in place and how they could be improved, the FWO took a "strict compliance" approach and proceeded to prosecution.

The Federal Magistrate further commented on the purpose of the legislation and reflected on the intention stated at the time of its introduction which was "to provide information and advice on Commonwealth workplace laws to …employers."

The current trend of the number of unfair dismissal claims continuing to rise each quarter, along with the cost and confusion around application of some awards, is causing many small business owners to make decisions that are not necessarily in the best interests of the business. Professor Judith Sloan, in her commentary on ABC’s The Drum, recently made the point that for some employers the loadings and penalty rates (for example in retail) become so onerous that they decide they are better off not opening on certain days rather than face the cost of doing so. In addition to this the protections provided to small business employers were recently narrowed so that the test for a small business is now an employer with fewer than 15 employees (rather than 15 effective full time employees)- meaning that casual and part time workers are also included in the head count. Sometimes it is easier – less time consuming and less time out of the business- for the employer to pay an amount of money to the disgruntled employee rather than fight the unfair dismissal claim.

The commentary in the media is consistent with our experience at BlandsLaw regarding the small business owner and their efforts to comply with the modern awards and the provisions of the Fair Work Act. Often it is not until they are contacted by the Fair Work Ombudsman that they are aware they are not compliant, despite having made efforts to be compliant. It seems that many of these businesses face the same challenges of limited resources and limited ability to interpret the legislation. There is no doubt that these businesses would benefit from some guidance and advice from the FWO where it is apparent there has not been a deliberate attempt to avoid their obligations to their employees.

The following guidelines may assist employers who are concerned about their compliance with the relevant workplace laws:

Identify the appropriate award applicable to your employees and ensure the conditions of the award are being met.

Check if there is a transition period that applies as this may alter some or all of the conditions .
Ensure you have a clear and complete employment contract which covers both compliance and business protection issues.

Ensure you have clear policies and procedures with documented proof that all employees have received a copy.

You may consider putting in place Individual Flexibility Agreements where there is agreement with the employee to pay an amount that is different to that contained in the award (provided of course it meets the BOOT test).

If you are unsure about any of the above seek legal advice on the applicable award and arrange for an audit to be conducted to ensure you are compliant.

For further details about application of the Fair Work Act 2009, modern awards, unfair dismissal or any other workplace issue please contact BlandsLaw http://www.blandslaw.com.au/.

Minimum Wage Decision Coming Friday

2011-06-02T10:35:00.004+10:00

The minimum wage decision is to be handed down tomorrow.

This will have a potential effect on all employers that employee people pursuant to an award.

The minimum wage currents sits at $569.90 per week.

What happens is that the FWA hears submissions from all interested parties.

The Unions have made submissions that the wage should increase by $28 per week.Various employer groups have submitted lower amounts ranging from $9.50 to $14 per week.

Last year, FWA awarded a $26 per week rise, which was only $1 lower than what the Unions had suggested.If FWA stays true to that form, the Unions will be grinners tomorrow and the employers can..well...please themselves.

We at Blandslaw will keep you posted.Look for article explaining the implications later next week.

texting out of line

2011-06-01T17:54:00.003+10:00

Did you see that decision of Fair Work Australia the day before last on the employee winning her case for unfair dismissal after being sacked via text message?

In short, the employee had changed shifts without permission and was late for work.The employer, on Boxing Day no less, had sent a text saying that she was sacked and not to bother coming back in.

There are problems with this on so many levels it is difficult to know where to begin.Obviously, it is a terrible way for an employee to be informed that they no longer have a job, even in this age of texting replacing many alternative forms of communication.More importantly, from an employment law perspective, the employee was not warned about any performance issues and , crucially, did not have an opportunity to explain, nor improve her performance.Whether or not the employer is a small business(less than 15 employees), warnings are required.

Furthermore, there was not one iota of due process followed.When terminating employees, the process is often just as important as the reasons for dismissal.What should have happened , in the case of a decision to terminate, was that the employee should have been called in for a face to face meeting and allowed a support perosn present, where the decision could be communicated face to face.

Common sense, you think?Unfortunately, common sense is not all that common.....

OHS Laws update

2011-05-31T16:46:00.002+10:00

Hi all.

Been flat out the last few months with no time to do things like blogging but I am going to get back into it starting...today!.

Just a quick note to get things re-started.I see the NSW Government has changed the NSW OHS laws, which were by far the most onerous for employees in the country.Gone is the reverse onus of proof for Employers(good news) but the Govt could not get the other important change through the upper house-namely the eradication of the law that allows unions to prosecute employers for breaches of the legislation.I have previously commented on the clear conflict of interest with this type of claim, but there it is..

Saw the Dandy Warhols in Sydney on Sunday night-one of my favourite bands and they did not disappoint with a solid 2 plus hours of music...awesome.

Bullying in the Workplace - What Employers Need to Know

2011-04-12T14:44:00.004+10:00

On 6 April 2011 the Victorian parliament introduced a Bill to amend the Crimes Act so that serious workplace bullying could result in a jail term of up to 10 years. The definition of what type of behaviour would be covered by the legislation includes “using abusive or offensive words” that could reasonably be expected to cause physical or mental harm to a person (including self-harm).

Although Victoria is the first state to introduce legislation bringing this behaviour into the criminal sphere, if passed it is reasonable to suggest that other states will follow.

The introduction of this legislation reflects the wider problem of inappropriate workplace behaviour and making those responsible accountable for their actions. The proposed legislation would also cover online bullying which is of particular importance with the growing use of social media sites.

Implications for Employers

Employers need to be particularly diligent in ensuring:

That they have clear policies and guidelines outlining what is acceptable behaviour,
Defined processes for dealing with employees who do not abide by these policies and
A policy covering use of social media both during and outside working hours.

ACTU president Ged Kearney emphasised the need for employers to provide a safe working environment where employees feel free from harassment:

“These laws will hopefully help deter people from undesired behaviour but it shouldn't suggest to employers that it's no longer their job to provide a safe workplace for all employees. Every workplace should have policies and procedures to deal with bullying and harassment, as it's essential for employers to provide a safe and harassment-free environment for all their workers.”

She went on to state that not only should serious bullying in the workplace be dealt with as a criminal matter, but that for employers it is also an OHS issue. This means that the onus is still upon employers to not only ensure the workplace is a safe place, but also that there are transparent policies and procedures with clear guidelines for grievance procedures so that employees are assured that any incidents of bullying will be taken seriously and will be dealt with appropriately.

This is a guest post by Christine Broad, Solicitor at BlandsLaw.

Facebook causing more Problems for the Employment Relationship

2011-02-10T09:27:00.002+11:00

There was another example this week of employees being sacked because of what they have said on their facebook site.

Longtime readers of this blog will know that this is further evidence of a major problem facing employers and employees ,and increasingly so.

This one had an an employee using his Facebook site to make alleagedly racist, homophobic and derogatory comments about a range of people.Some of these people included work colleagues and the workplace was mentioned as well. I think this might have been a crucial factor in the company's decision to stand down and ultimately terminate the employee.

Without at all condoning the opinions of the employee, I think that it may have been problematic for an employer to take action against an employee if some of those opinions had not been directed at the employer or fellow employees.This is a very grey area in matters such as these-the distinction between privacy and detriment to the business of an employer.

There is no news as yet on whether the employee intends to fight the decision to terminate however I believe an important factor in whether the employer is on safe ground will be the extent to which the employer had any policy on the use of social media.In the absence of a strong policy, it may well be open to the employee to successfully challenge the decision based on unfairness, particularly when he was using a site that he did not believe that connected to the workplace.

This is the first in a series of blogs over the next few weeks addressing social media issues in the workplace, so stay tuned.

On an unrelated note, congratulations to the Green Bay Packers on a fine win in the Super Bowl last week-a great game and a fine performance from Aaron Rodgers.Readers will be aware that my mate and fellow tipster TK is a Packers fan so congratulations to him as well.And for those scoring, yours truly made a fine comeback in the tipping contest to win by 2 overall.Looking foward to that lunch, TK.......

2011-01-27T10:30:00.004+11:00

Happy New Year to everyone and to those that took a break, hope it was restful and relaxing.

Australia Day has come and gone which is usually the date that we mark as being the start of the business year in earnest.

Will start the year with just a short blog today-don't want to overdo it so early in the year!

January 31 is fast approaching-for many that means the beginning of the School year but it is also an important date for unincorporated entities.Why?Because as of that date, such entities will be covered by the Federal system and the Modern Awards.

Many employers will not be affected as they are already under the Federal System however for unincorporated associations, partnerships(where there is no service company) and sole traders, this will mean significant change.

And it will surpise no-one to learn that it will not be a simple transition.There are complex transitional arrangements in place that allow a gradual changeover over a period of time, although the change cannot result in employees earning less than they were under the Old State award.

For those affected, have a chat to some of your colleages that are already in the Federal System-there are lots of war stories to tell!

The first job will be to investigate what award covers your business and from there a careful comparison will be needed to ensure that you as the employer are meeting obligations.

Industrial Relations, Wiki and some sport

2010-12-10T09:38:00.004+11:00

Thought bubbles whilst reflecting on a strange, strange year on many fronts.

Polictically speaking, it was a slow year for IR in Australia in 2010.Tony Abbott quickly worked out that the only trump card Labor had was to roll out the workchoices campaign that worked so well in 2007.So, despite probably believing deep down that IR reform was necessary he played a straight bat and took the issue off the table.

However, since the election, Joe Hockey and others havee put the issue back on the table and Tony has told Business that if they want reform it is up to them to push it.My prediction is that there will be a lot more talk about reforming IR next year amongst the opposition and I see that the Productivity Commission has come out this week in favour as well.Watch this space, as they say....

Interesting case of age discrimination coming out of W.A.Looks like someone from one of the "big four" accounting firms is alleging that they were passed over for promotion because of age(52 years old).This could turn ugly for firms such as these(and law firms too) that have such heavy pressure to keep promoting young talent or risk losing them to competitors or other opportunities in Industry.I know that many partners are encouraged to leave around their mid-fifties in the interests of succession planning, but what if they do not want to, or they are not partners?....

Is it just me or is this whole Wiki leaks thing a bit of a yawn.This time of year there is not a great deal of "news" about, and so the media are filling the space very nicely, but does it really matter what some diplomat thinks of someone else?

Speaking of leaks and the media, I see Laurie Oakes took out the gold walkley last night at the annual media awards.Not sure how great a job someone does who is basically presented with some damagely leaks and then goes and publishes them.How is that outstanding journalism?Congrats to Kerry O'Brien who won 2 awards on the same night as bowing out from 7.30.He has had some great interviews over the years and the two with Rudd and Abbott this year were memorable.Pamlela Williams from the AFR stood out to me-an old school investigative journalist who has written some outstanding pieces over the past few years.

We are strife in the Ashes...no revelation there-but the real problem we have is how we are going to take 20 wickets in a Test match.The bowling is terrible but there does not appear to be much out there knocking on the door.It's been a fine 15 years at the top since we knocked off the Windies over there in 95.Remember, that was about the same period that the great West Indian team dominated(1980-95).Maybe it just a time thing....

Good article on Julian Burnside in the AFR today-worth a read....

Thoughts are with the farmers in NSW and Qld who after 10 years of drought are now dealing with massive floods....

Have not given you picks in NFL of late but the news is that TK and I are neck and neck in our tipping comp.My lock of the week?Ravens to beat the Texans by more than 2.5 in Houston.....

Casuals versus Permanents-a problem for employers who get it wrong

2010-12-09T20:30:00.003+11:00

Been a bit flat out lately so the posts have not been as frequent-sorry about that.

The issue of whether employees are casuals or permanents has been a vexing issue for employers for some time now.As I say to my clients "just because you call them a casual does not mean that they are one".

As you all probably know, a casual employee does not receive annual leave or personal (sick) leave and in return gets paid a "loading" which is usually 25% of the permanent wage added on.

With casuals, employers not not need to give notice of termination like they do for permanent employees which can mean sometimes up to 3 months notice or more.

A casual employment relationship has many features and an important one is that there is no expectation, on either side, that the employee will work certain shifts or hours on an ongoing basis.A classic example is some bar staff who are told , perhaps each week, when they will be required, if at all.Thoise staff that have been working regular shifts or days over an extended period, and expect to work those hours, will not be casual employees.

The problems for employers in getting it wrong were again highlighted in a recent case involving a Miner on a fly-in fly out basis.He was paid $40 an hour which was supposed to cover all payments due to perform the work.Importantly, he was engaged as a casual pursuant to a contract and the loading was referenced as part of his payment.

He was dismissed with one hour's notice, in line with his contract and consistant with a casual employment relationship.

He disputed the dismissal saying that he was entitled to annual leave and personal leave.The Court looked at the relationship and held that it was not a casual relationship and that he had a reasonable expectation of ongoing work.

But the kicker for the employer was that they failed in an argument that any payment for annual leave should be offset by the casual loading paid.Therefore the employee continued to be paid $40 per hour and could get his annual leave.

This was an expensive mistake for the employer and one that other employers should ensure does not happen to them.

Before employing casuals, make sure that they are in fact going to be seen as casuals pursuant to the law.

Cashing Out Up in the Air

2010-11-18T20:37:00.003+11:00

A recent decison of Fair Work Australia has cast doubt over whether employers and employees are able to cash out part of their annual leave entitlement.

Three enterprise agreements were rejected by the same Commissioner recently despite the clause on cashing out of leave appearing to comply with section 93 of the Fair Work Act.

In simple terms, the section allows employers and employees to agree to cash out part of their annual leave provided that at all times at least 4 weeks annual leave remains accrued after the cashing out is done.For example, if an employee has a current entitlement to 6 weeks annual leave they can only cash out up to 2 weeks so that the balance remains at 4 weeks.

It is important to remember that the cashing out option must be agreed both both sides;that is, it cannot be forced on the employee.The reason why a 4 week balance limit was provided was to safeguard against employees not being allowed the opportunity to take a break from work.

Despite all of this, and unbelieveably in my view, FWA has decided that despite the clause complying with section 93, it still does not pass the BOOT test.This is because no limit was put on the amount that could be cashed out, provided the 4 week ballance remained.So, for example, under the agreement if someone had 16 weeks accrued it would be allowed to cash out 12 weeks.

FWA decided that this could cause a situation where employees were not taking enough leave to afford them enough of a break and, therefore, it disadvanatges the employee.

I have to say that I do not follow that reasoning, particularly when you remember that the employee must agree to cash out the leave.Not surprisingly, the employers concerned do not follow the reasoning either, and the decision has been appealed.Stay tuned, as the decision will have a large effect on how cashing out clauses are drafted in the future.

Failed to give you our tip last week as I was caught up on some urgent business but great to see my Broncos back in the winner's circle.

This week I actually like the Broncos to beat the spead against the San Diego Chargers who are giving them 9.5.The other one is the New England Patriots at home against the Colts.It is never a good idea to bet against the incomparable Peyton Manning(Colts QB) but their team has so many injury problems, I think the Patriots will handle them quite easily and should beat the 3.5 points spread.As always, bet what you can affors to lose!!

update

2010-11-07T19:10:00.003+11:00

Did not get time for a post on Friday-I was at the Sydney FC function at the fantastic Ivy Hotel at the kind invitation of Joe Kein.

Excellent function with Mr Frank Lowy tell us all about his thoughts on Australia's bid to host the World Cup Finals in 2022.Fingers crossed that we get it-the announcement is December 2....

Also have been busy with some media committments of late which has been a lot of fun.Was on the Peter Switzer business show talking about the lessons for employers coming out of the David Jones case.Also, got a call of the breakfast team at 106.2 in Canberra last week asking my opinion on the legal aspects of taking photos which are posted on social media sites.The short answer is that if the photos etc were taken in privacy then you have a right to tell the photograher not to publish them, however if they were taken in public then all bets are off....

And speaking of bets, another good week for TK and I in the betting.I picked 9 and him 8 so I closed the gap to 4.Also our lock of the week, the Rams got up over the Panthers by more than 3.5.That is 6 of 8 on the year on the locks!

This week we like the Packers to beat the Cowboys by more than 7.5.I also like the Steelers to beat the Bengals by more than 5.5 but will go with the Packers....

Lastly, a huge congratulations to the San Francisco Giants for winning the world series for the first time in 56 years.Great effort with sensational pitching down the stretch.St Kilda, there is hope yet!

Bullying a Crime?

2010-11-02T08:38:00.003+11:00

The Victorian premier has indicated that he is considering bringing in legislation that would make workplace bullying a crime under the Crimes Act.

There is no more detail on this at the moment however if re-elected he will ask the Victorian Law Reform Commission to investigate the issue.

Apart from the civil remedies for bullying in the workplace there has been a trend in recent years to tie workplace bullying to breaches of the Occupational Health and Safety laws, which hands out criminal penalties in its own right.

Whilst it is great that Governments are taking harassment and bullying seriously, it would seem to muddy the waters further in terms of having uniform OHS laws throughout Australia.Already NSW and WA have indicated that they want changes made to the national legislation very late in the day and the National Scheme seems to be in danger of splintering at the 11th hour.

No doubt though that this will encourage Business to take this issue even more seriously, which is what is needed.

An another note, I see another decison has come through from the NSW Court of Appeal upholding a restraint and solicitation clause of 12 months against 2 employees.This is more fuel for the argument that if you get the restraint clause right it can be enforcable and protect your business.

And lastly, the Melbourne Cup.I know very little about this but the only horse I have ever followed was Kingston Town in the early eighties, a black horse that seemed to capture my imagination as a young teenager.So You Think is the heavy favourite and he seems to have pulled some of the same sentiments in me 20 years later , so I am hoping he can do it.I am more interested this year than I have been in years so here is hoping.

Good luck to all

Shoes, Dismissals and a little bet

2010-10-28T20:50:00.005+11:00

Thought Bubbles whilst wondering whether that person that threw the shoes ever got them back.....

So our "man of steel" is back in the news again whilst promoting his new book.Missed the Q & A on Monday night it it seems like some olf fashioned Iraqi culture has made its way to Australia.Glad no one got hurt, but did you see how far wide of the mark the throw was.?It was not even close and the person must have only been only 10 to 15 metres away, at the most!Gotta say it was pretty un -Australian......................................to miss the target by so far!(no disrespect meant towards our former PM ofcourse).Tony Jones seemed more upset than Howard about it and maybe John considers he has had worse thrown at him, like the egg thrown at John Hewson(which he caught) in 1993.

And whilst on politics, Peter Costello did not hold back a few days later did he?Said John did not have it in him to accept blame for the defeat and share credit for the good times.Ouch!Pete was always cheesed off that John never invited him for Dinner and I cannot see him receiving any invite in the near future.....

Fair Work Australia have released figures showing an enormous increase in claims in the past 12 months(153%).Obviously, this has a lot to do with the reintroduction on unfair dismissal claims.I don't have the numbers but I would be surprised if many of these got past the concilliation phase.I say it again, this has more to do with the vast majority of employers being non compliant when it comes to dismissing employees.If employers laid the groundwork properly, there would be nowhere near the same number of claims.....

And employer groups seem to be beginning a campaign to reform some of the changes made by Labor after they came to power.Unfair Dismissal, workplace bargaining and industrial action are in their sights.The Unions worked hard to get Labor to makes these changes and they will not go down without a fight.Stay tuned, but the first hurdle for Business will be to convince the opposition, as they are playing a bit of a game of "stay away" at the moment, perhaps trying to remain a small target.....

I see we have the next high profile sex discrimination case coming, although nowhere near the same level of profile as DJs.A former partner of one of the large accounting firms is suing them for harrassment and bullying.Stay tuned for more of these to come out.Policies and training and education, people!Employers as a whole need to walk the walk, not just talk the talk on this issue, as Johnny Wayne used to say.

Congratulations to one of my favourite( and underrated bands) The Church for their induction into the ARIA Hall of Fame.Some great songs including my favourite, Almost With You.First Class outfit...

Kevin Pietersen is making some waves and having a shot at Buchanan for being "a nobody".I tend to agree with him that "Buck" had a fairly easy job coaching that Australian team of the late ninties and early 2000s but still, Kev, might be time to button the lip until you actually start scoring some runs?

For those interested in baseball ,the Giants are playing the Rangers in the World Series and game 1 went to the the Giants in a high scoring one with neither "ace" pitching very well.Matt Cain goes today for the Giants and I like his chances....

In the NFL both TK and I both scored well last week picking 9 correct.As readers of this blog will know. TK and I pick the games each week against the spread which can be tough.He still leads by 5 overall.TK and I both had the same "lock of the week" last week and got up with the Falcons beating the Bengals by more than 3.5.Happy Days!

This week he and I like the Rams to beat the Panthers by more than 3.5....

Enjoy the weekend.

Restraint of Trade Decision(and other stuff)

2010-10-24T19:13:00.004+11:00

The NSW Court of Appeal handed down its decision in the OAMPS case on Thursday.This was an appeal by an employee who had lost his case in the Supreme Court against his former employer.

His former employer had taken action against him for breaching his employment contract which had provided for a restraint clause to stop him being able solicit or work for clients of the former employer in his new employment.

The restraint clauses were complex and provided, on a cascading basis, for retraints from 15 months down to 12 months and with a geographic location anywhere in Australia, down to the state of NSW.

The employee had alleged that these cascading clauses were confusing and thus should be struck out.The Judge who first heard the case disagreed and said that it was a reasonable clause and was binding.

The employee appeal and lost again in the Court of Appeal.

The effect of this is that the employer was able to stop the employee from working for clients of the business for the 12 month period.This is further evidence to refute the theory that "restraints are not worth the paper they are printed on". A properly drafted restraint will be able to protect your business by stopping former employees poaching client and staff and is a "must have" clause in most employments contracts.

We will send out a more detailed analysis of this case in the coming days.

Now, onto the NFL tips. Last week both TK and I had 7 picks each so his lead stays at 5.The 49ers beat the spread unfortnuately, but I did win my $5 on the Steelers beating the Browns by more than 13(Yay!).

Now TK and I both agree that the "sure thing" for this week is the Falcons who are at home an only giving 3.5 to the overrated Bengals.Get on them, I say!

And lastly, a big congrats to both the SF Giants and the Texas Rangers for making the World Series this year.The Giants have not won a title since 1954, before they moved out from New York to the Bay area and the Rangers are in the WS for the first time.A particular congrats go to the Rangers for taking down the team with the biggest payroll and that everyone loves to hate-the New York Yankees.As a Redsox fan I was doubly pleased!

Both teams were not given a chance at the beginning of the year so its great to see them there.

I reckon it will be Giants in 7 games, led by its outstanding young pitching-should be a fun series.

Politics, spin doctors with an IR background

2010-10-19T08:16:00.006+11:00

Lots of Industrial Relations issues in the news.

As I alluded to last week, the David Jones case went to mediation last Friday and as we all know the case settled for what is believed to be 850k.As I said, this had more to do with the PR and playing it out in the media however , in terms of the settlement sum, it is still very large by the standards of previous cases.I think that Fraser-Kirk's lawyers over played their hand a little by claiming 37 million, when there was a snowball's chance in hell of getting that, however the settlement is still a good result(in legal terms) for the employee.

From a lawyer's perspective I was disappointed that we did not get to see whether the claim against the directors would succeed, as that was ground breaking law.However, I suspect that we have not heard the last of these types of high profile, media driven, claims against Companies and their Boards.

And the lesson for employers out of all of this?There will be more claims like this against companies large and small.So here is what do you need to do to minimise your chances of avoid these types of claims.

Most importantly , there needs to be a zero tolerance attitude to sexual and other forms of harassment.It does not matter who it is, CEO, or otherwise, the company must take action immediately when these claims arise.By taking action I mean a full investigation with a transparent decision.Whilst not knowing the inside of the DJs story, it seemed that the CEO was doing a great job turning the company around and profits were the best they had been in years.He also , allegedly, had a history of dubious behaviour towards some female staff members.You can see how the company may have chosen to turn a blind eye when the profits continued to flow.Obviously, if that is what happened, it was a poor series of decisions by the Board and the behaviour should have been dealt with immediately.

A common defence to these types of claims is that it was not clear whether the behaviour was welcome or otherwise.In my view this a weak defence if the company clearly spells out what is expected.How do you do this?By having a clear policy as to what is expected and what is not tolerated.This is done through having a written policy that the employees are required to read and acknowledge together with CONTINUOUS training of all employees on what is right and what is not.This point cannot be overstressed and achieves two goals.The first is it ticks the box of compliance and more importantly educates employees on company standards so there is no misunderstanding as to expectations.

I will deal with the OHS blowup between the feds and NSW tomorrow.

DJs, OHS and some Sport.

2010-10-15T09:20:00.004+11:00

Thought bubbles whilst marveling at the the engineering feat that got those miners out of the ground safely....

Wasn't that amazing to see the other day, as one after another that capsule went down 600 metres into the earth and came back with an alive human being each time.Just like in Tasmania a few years ago, it makes you buzz all over.

I see Kristina Keneally is saying she wants to go it alone on OHS laws.More detail on this in a blog next week however excuse me while a roll my eyes.NSW has, by far, the most extreme workplace safety laws.Now I am all in with using whatever means is necessary to protect workers from harm in the workplace-there is not a more imporant issue for an emplyer than that-but what the premier wants to protect is the right of Unions to prosecute employers for breaches of the OHS legislation.This is an unwarranted and needless provision.Workcover in NSW and its counterparts in other states are more than capable of prosecuting companies that breach these laws and there is a clear conflict of interest for unions to have this right as well.Of course, as is usually the case 5 months from an election, this is more about the politics than policy and it looks like the PM will take a hard line as they have done a great deal to get uniform national workplace laws in place.

Whilst on IR, I see the parties in the DJs case are going to mediation today and some are predicting a settlement may come.So far, this has been more of a PR war than a legal war with all sides engaging the best of the best in the PR industry to help out.From my perspective it looks like Fraser-Kirk's team is getting the best of that, but she does have work material to work with I suppose....The legal issues will come and whilst most of these we have seen before and are not groundbreaking, what will be interesting is whether Directors of the company are found to be personally liable for the actions of the company and its CEO.That seems like a long bow however the ramifications for Boards across the country will be enormous.

Commonwealth games is over and well done to India for hosting the event which, whilst not going off without a hitch or two, did not live down to some of the more hysterical dire predictions from some in the 4th estate.

And while in India, the Aussie Test team went down the tubes 2-0 in the 2 game series.Both game were pretty close and it again showed that it is all about the second innings in the sub-continent.You can bat first and score 400 plus as we did in both tests, but if you get rolled cheaply in the tougher batting conditions on days 4 and 5 you are going to pay the penalty.And Australia showed yet again that their batsman struggle in conditions where there the pitch turns bigtime.

Still lets not over react and say the team is in turmoil.I have not looked this up but I am pretty sure that we have only won one series in the past 40 years in India and we have had some pretty good sides over that period.And you only have to look at India's home and away record to see that there are extreme differences in conditions when playing on the sub-continent compared to say Australia, England all the West Indies.

As they say its good for the game and in the interests of competive cricket maybe Australia should play all its games away from home.Just look at the Ashes results in the last 4 series...

Water issues in the Murray heating up with the farmers and the Greens taking up battle positions.This has a long way to run.... Not an original thought but does it bother anyone that it basically rains for 6 months of the year in northen Australia and most of that rain just runs into the sea?Why don't put our big picture hats on and work out a way of getting that water to other parts of Australia that need it and don't have it.I know it will cost a lot but these projects are what our country was build on, no?

Lastly to this week's NFL games.I follow the Denver Broncos and have done so for 25 years since a young John Elway was the quarterback.What a legend he was.The Broncos(2-3) play the Jets(4-1) at home but I am not entirely confident of their chances.Should be close but the jets are hot.

My mate TK has thrown a couple of "kinda sure things" for me to pass on.The Jacksonville Jags host the Titans and TK like the Titans to win by more than 3.5.He also like the Raiders to cover the spread of 6.5 against the 49ers.As for me, I like the Raiders as well and also the colts to beat the redskins by more than 3.5.As always, only bet what you can afford to lose...

Off abseiling tomorrow for the first time in 25 years for a friend's 40th and gotta say I am a little terrified.......

Modern Awards Causing Ongoing Problems

2010-10-13T08:52:00.004+11:00

Lots of stuff today in the the media about the ongoing problems that all businesses, particularly SMEs are having with compliance with the Modern Awards.

For background on this check out the numerous articles on our website, but essentially the new Award system came into play on 1 January this year.For some industries the change from their old awards to the new ones were quite significant, in terms of pay and contions for its employees.

As a result, the Government inplemented some tranistional provisions which are to take place over a 5 year period.Essentially, there will be a gradual change to the new award conditions over that period with incremental increases, to reduce the pain for employers.

However, the real pain for employers is in trying to understand how all of this works and I can understand very easily why there is so much confusion.Not only do employers need to have their head around the transitional provisions, but they also need to factor in the annual wage decsions of Fair Work Australia and be careful not to get into a position where the employees are worse off( and thus be subject to a take home pay order).

When you add to this the fact that a great deal more employees are covered by the award system than previously it adds to one big headache.And one more ingredient to throw into the pot?For those that think "Its all too hard" and do nothing, The Fair Work Ombudsman has been extremely active in invesigating employers that are not compliant.

Look, my view is that , from a big picture perspective, the changes are a good thing for the long term, however the teething problems continue and are now more like root canal than just teething!

On another note, for those wondering about my "lock of the week" pick in the NFL last week, lets just say that there is a good reason bookies make so much money and now they have another $5 from yours truly.Still up on the year though!

My mate TK managed 6 correct picks to my 5, so he is ahead by 5 now, with 14 weeks to go.

Stay tuned for my prediction later in the week....

AWAs in Dying Days.

2010-10-08T09:10:00.003+11:00

There was an article in the Australian today about expiring AWAs being a threat to business.

Well maybe, but maybe not.

As we all know AWAs were outlawed after the defeat of the Howard Govt in 2007.However existing AWAs were allowed to run and there was a maximum term of 5 years for those agreements.Many employers opted for a shorter term of 3-4 years but either way, these agreements will begin to expire over the next 12 to 18 months.

The article talks about a move to collective agreements in replacement of the AWAs and this is certainly the trend to date, and I expect this to continue.Is this a bad thing though?Some worry about the collective agreement concept being a "one size fits all" proposition and that it devalues and stagnates enterprise and individual reward for employees.Not so, I say, if you draft the agreements to reward differing individual effort.And this can pretty easily be done.

The advantage of collective agreements in industries which are heavily unionised is that you can avoid industrial action(strikes and the like) if you have one in place.This is indeed a big plus and a major reason why many busineses with these issues are flipping to the collective agreements.

However, there is another way.I have talked before about the concept of Individual Flexibility Agreements.In many ways these can achieve many of the outcomes of the old AWAs in terms of contracting out of conditions such as overtime, penalty rates, allowances and annual leave loading.If you have AWAs coming to and end , look at this option before deciding which way you want to go with your employments contracts.

Lastly, and off topic, who follows the NFL in the States?Like most games, it is a fantastic game once you understand the rules and I am right into it.Myself and my mate Todd play have a tipping contest each week.To make it harder we tip against the spread-and it does make it much harder.He leads by 4 after 4 weeks, and we usually tip at about 60%.

Anyway, I am going to give you a "sure thing" tip each week.So far I am 3 for 4 on those after 4 weeks.This week the New York Giants travel to Houston to take on the Texans.The Texans are giving the Giants 3 points start.I say, get on the Texans!.They are a dark horse this year and while the Giants pummelled the Bears last week at home, they still struggled to score.Will let you know how we go.And by the way, this is not to condone betting in any way.Bet only what you can afford to lose.In my case, that is $5 per week!

Enjoy the weekend.....

changes coming?

2010-10-07T16:50:00.003+11:00

Looks like IR is back on the political agenda with the opppostion and sections of the business community making sounds about the need for change.

On the one hand, you have Joe Hockey coming out and saying the the opposition is open to looking at changes to the legislation, but on the other hand saying that business needs to lead in this area and have its voice heard. I am ofcourse parphrasing what he said, but this writer did attend a recent fuction where Joe was one of 3 guest speakers and he basically said the same thing-that business needs to raise its voice on these and other issues so that they become part of the national discussion.(By the way, have you ever heard David Gonski speak?What an impressive man he is)

And then you have the business community, or sections of it, saying that its effectively up to the oppostion to be the movers on this and that they need to lead reform in IR.Tony Abbott ruled out and changes at the last election, however given that they are still in oppostion, I would not mind betting that that policy will change.

So what does it all mean?Who knows, at this stage as the posturing is still in full flight, however small business has been crying out for a full exemption for unfair dismissal laws since they were reintroduced, and, the Liberal party likes to say that they are the part of small business.A small business is currently 15 employees or less......is that up for debate maybe?

There may also be some change to the idea of a minimum 3 hour shift, a situation that was exposed earlier this year as being inflexible when it comes to School kids earning a few extra dollars after school.

stay tuned and watch this space.

support person or advocate?

2010-09-16T08:56:00.004+10:00

Hi everyone.I am back after a bit of a rest to take stock after the debacle that was called our Federal Election and the fallout that has arisen from that.One good thing-at least we now have a Government, so business can get cback to some degree of normalcy, however uncertain our political frame work may be......

One thing that seems pretty topical at the moment with our clients are questions about the role of the support person in terms of disciplining employees.I certainly recommend that employees be afforded the opportunity to bring along a support person to meetings where matters relating to performance are being discussed.However, the role of that support person has been called into question in some instances.My view is that the role should be limited to one of observation and comforting where the employee is upset or distressed.It is not, and should not be allowed to be a spokesperson for the employee.

I have seen some meetings get out of hand as a result of the inappropriate action of support persons who seek to control the meeting and what questions should be asked and answered.

To avoid these types of situations, guidelines should be set out prior to the meeting commencing that make it clear that the support person is there to provide "support" where required, to takes notes if they choose to, but not to speak unless invited to by the employer.

Thought Bubbles Whilst Working Out Who is Right of Who in this Election

2010-07-19T09:33:00.005+10:00

I love the pesonalities but could this be one of the most content free elections of all time?We have "tow away" Tone and Julia "moving forward"Gillard, but where is the difference in policy?Early days, I know, but both seem very keen to be just like like the other.And even the personalities seem to have been "toned" down, with both trying to out do each other in talking earnestly and without fire.C'mon , liven up a little!

And one of those "me too" issues seems to be Industrial Relations.Tony jumped the gun on Saturday morning by saying he is not going the make changes to IR in the first 3 years of his Government.I wonder if this will be the first of many questions by Labor about whether that is a "gospel truth" policy of not.I note it was not in writing......

I see the retailers are appealing the "3 hour" rule which is part of the new modern award.This received some press last year when it was found that students and the like were being barred from some workplaces because they were not being guaranteed 3 hours work at a time.For example, a student would want to work after School from say 3.30pm to 5.30 pm but , because it was not for 3 hours duration or more, employers were being forced to pay penalty rates.And guess what?Employers were no longer employing them.You can understand the reasoning behind the 3 hour rule, as you don't want employers being able to send employees home after one hours work, particularly if it takes a long time to get to work in the first place.But still, surely the award could allow for the student issue.....

Don't usually catch it, but saw the Matty Johns footy show last week and they have a remake of "controversy corner".I used to love that segment on the old football show hosted by Rex Mossop with guys like Noel Kelly, Col Pierce and Ferris Ashton.Remember they used to get a pack with a bottle of Orchy at the end?All they need is for the CBA to re-sponser the passing competition and we will be set.....

And nice sledge by David Gallop having a shot at the "back seat drivers" who think they know all about running the game.....I think I can guess at least one of the people he is referring to.....writes for the herald and used to coach?

The last election had elements of social media in it, but this one promises to be much more involved.And when it comes to twitter, it may come down to what candidates use the medium in the best way.There is a good example on one of the media websites at the moment where one candidate has simply linked to an interview he had with a journalist and the other the other has made some commentary about an event he went to.People are being asked which is best....I think I know the answer.

And lastly, congratulations to Spain.Certainly a win for attractive football and a big bost for a country that is struggling economicly at the moment.Wonder if Paul the Octopus knows anything about Australian Federal elections.....

Skilled Shortages Back on the Radar

2010-07-12T10:21:00.004+10:00

There is more evidence that the labour market is becoming tighter meaning (good) employees are becoming(again) harder and harder to find.

So says a new study from AIG and Deloitte which shows employers reporting iuncreased difficulty in filling job vacancies.

This is exactly the place we were in back in the first half of 2008, and then the GFC hit in October of that year.

Let's revisit the playing field back then to give you an idea of what employers can expect into the future.

Skilled employees were incredibably hard to find and employers were doing everything they could to attract, but more importantly, retain good staff.

There are many aspects to executing this strategy but ensuring a happy and rewarding (financial and otherwise) workplace in critical.

Having flexible working conditions will again be an important point of difference. On the financial side, employers will need to again consider options such as profit share and equity stakes.

The key will be incentivising employees to stay with you or come on board.

Don't forget one of the ways to do this is via a customised employment contract.

Random thought bubbles while wondering whether BA will allow Warnie on their flights again

2010-07-06T08:21:00.003+10:00

Did you see that twitter episode the other day where Warnie was hammering British Airways while sitting in their first class section?A good example of why Companies need to have a PR response ready when these things happen.Not sure that Warnie will be welcomed on any more BA flights and maybe any other airline as well.Be quiet , captain!!.....

We have a new Prime Minister and our first female one and to that I say Bravo!!.I think she will be great.It is going to be fun watching Gillard and Abbott go against each other over the next few months.If she wins this election she may wish to try a double career as a trapese artist having negotiated the mining tax, climate change and refugee issues.....

And Tony will be hoping for an election date as late as possible.It will be pretty hard to get photo opportunities his his sluggos in the cold days of an August winter.October?I think he could get away with it.....

The business world is starting to catch up.Here at Blandslaw, we have a very flexible work poilicy with some employees working from home and others working around School pickups and other family committments.And now there is a report that says that only half the professionals in this country believe they still get the best results by spending the majority of their time in the office.Looking forward to the other half waking up and smelling the roses.....

"Multi tasking makes you dumb"...so says an article in the Fin today.Well then I am avery very very smart guy....(insert tongue in cheek here)

Fair Work Australia turned 1 last week.I am going out on a limb to say it is a mixed scorecard.The new unfair dismissal system is streamlined and works well.On the other side, there have been some large delays on the part of other areas in FWA and trying to get a hold of the help desk is major challenge at times.I am not the only one who says that, by a long stretch.

I am a self confessed political junkie and may of my ilk are facinated by the betting on the election date.It seems like the two shortest priced dates are 14 and 28 August.September 4 seems to have been discounted(football finals) and September 11 for obvious reasons has been downgraded.But what about August 21?You can get more than $3 in better odds for that date, than the ones either side.If someone can tell me the significance of that date, I would be much obliged.....
And lastly, to our old friends in the Uruguay Football team.The Soccerroos have a rich recent history of tussles against them, but I have to say that deliberate hand ball in the 120th minute was the biggest act of cheating I have ever seen on the sporting field.How that guy is allowed to play in the final if they make it it beyond me....

Maternity leave Decision time for Employers

2010-06-08T09:46:00.002+10:00

The Government's paid maternity leave scheme heads off to the Senate shortly.

If passed by the Senate( and the way that house has been working, that is no given), the law will take effect in October of this year.

The issue for businesses that already have a maternity leave scheme in place is what to do with it.The compulsory scheme, you may remember, provides for 18 weeks paid leave at the minimum wage(nor $570 per week).Many businesses that already have a scheme in place may currently pay employees a smaller number of weeks but at their normal pay.

For example, an employer may pay say 12 weeks maternity leave at the employees level of income that could be anywhere from the minimum wage upwards.For someone earning $100,000 that would mean receiving around $25,000.The paid scheme would pay that same person $10,260.

As I see it employers have 4 options

Add the Government's payments to the existing scheme
Absorb the Government payment into the existing scheme
Add further weeks to their existing scheme
Replace their existing Scheme to that of the the Government's

Lets go through them.The first option would mean that, using the example above, an employer may say that they will keep the 12 weeks in place at full pay and then add a further 6 week(to total the 18 weeks) at the minimum wage.This would obviously be a little complicated as they would be calculating payments at 2 rates however it would be good PR in showing they are paying 18 weeks and at a higher rates than they need to.

The second option would mean that where the existing scheme pays more than the compulsory one, they simply keep the status quo.So in the example above , the employee would get the same amount(25k) as it is more than the statutory scheme.This may be a popular choice amongst employees but it each case will need to be individually calculated so ensure that the employee receives at least the statutory amount(as indexed).

The third option would mean that the employer would match the 18 weeks and pay it at full pay.Again, this would be a good PR exercise for the company.Remember that one of the consequences of the new scheme may be a bit of a "race to the top" amongst employers to show that they have a better parental scheme than their competitors and may be a selling point for attracting new employees.

The last option is probably the least desirable of the four and may not be taken up by many employers.It would mean reducing the existing scheme to that of the Governments.

Remember also that where there is a scheme in plave that is not as beneficial as the Government's one, that will need to be increased.

So start thinking about your current arrangements and how to best place the company for the new environment.

Minimum Wage decision handed down

2010-06-03T15:43:00.004+10:00

Fair Work Australia today handed down its decision on the Federal Minimum wage.

It awarded an increase in the minimum wage of $26 per week , now being $569.90.

Employers were hoping for a small increase and the union representatives had asked for an increase of $27 per week so you can guess who was happy and who was disappointed.

However, given that there was a wage freeze in the 2009 decision, it was always likely that FWA would come down with a decision at the upper end of the range.

What does it mean? For those employers who employee staff based on the minimum wage, wages will increase by $26 per week.

Where employers pay staff somewhere between the minimum wage and $569.90 per week, wages will need to increase to at least $569.90.They may decide to pay the full increase of $26 per week but may choose to absorb some of the increase into the existing over award wage.

An example to show what I mean.

Employer A currently pays the minimum wage of $543.90.They must increase wage to at least $569.90.

Employer B currently pays the $560.00 per week.They must increase wages to at least %69,90 but may choose to increase them by more in line with the $26 increase.

However, it is critical to understand that the award that operates in your workplace may allow for a higher minimum wage that $543.90.Most awards do allow for a higher minimum.

This is where it get confusing so bear with me. You will need to look at your modern award and examine the relevant pay scales for that award and work out what the new minimum pay scale is for your own award. These are currently being updated by FWA so stay tuned.

If you want some help with how it affects your business contact us for more information.

A win for Individual Flexibility Agreements

2010-05-20T20:06:00.003+10:00

Fair Work Australia has handed down a decision which is a win for employers wanting to use Individual Flexility Agreements.(IFA)

This space has commented at length on these agreements previously, but in short they are agreements that can be made between employer and employee which seek to vary certain conditions including hours, overtime and penalty rates.

In an earlier decision FWA had said that where there is an enterprise agreement in place, employers could not enter IFAs.This was a great concern to many employers and employer groups.

AIG appealed the decision and the Government also intervened to seek to have the decision overturned.

The Full Bench of Fair Work Australia decided that the original decision was wrong and that IFAs could be made, even where there was an enterprise agreement.

Heather Ridout said afterwards

"The Full Bench has confirmed that the operation of a term of an enterprise agreement can be varied by an IFA so as to alter the legal rights of the employer and employee parties to the arrangement,"
"The decision importantly preserves the flexibility for employers and individual employees to reach agreement on arrangements which suit their needs."

Too true.Employers are rejoicing.Unions who will to control negotiations through enterprise agreement, not so much.

Government tying procurement to employment conditions

2010-04-20T08:30:00.002+10:00

There has been an interesting development in relation to employments that are seeking to gain work from the Federal Government and its departments.
The government has stated that in order to qualify for contracts, Employers will need to ensure that its enterprise agreements struck from 1 January this year allow for last resort arbitration in relation to disputes.What is news about this is that this is not a compulsory clause in enterprise agreements under the Fair Work Act and many employers do not have this clause in their agreements.
Employers will be concerned about this development.Most enterprise agreements do not have this clause in there because employers have preferred to have a system for resolving disputes which did not involve a third party.
The third party, whether it be Fair Work Australia or otherwise, would have potentially far reaching powers to intervene and direct changes in policy and conditions.
Importantly, employers contracting for Government work will also have to ensure that each of its subcontractors is also compliant with these requirement, which means that the rules will have far reaching consequences well beyond those companies that have the actual contract with the Government.
I cannot see many companies balking at applying for the contracts based on these new requirements to they will need to mange any workplace disputes that occur with this compulsory arbitration clause hanging over their head.

Individual Flexibility Agreements(IFA)-trojan horse for AWAs?

2010-03-30T08:56:00.003+11:00

One of the parts of the new Fair Work legislation that has received very little exposure is the provisions for employers and employees to contract out of parts of a modern award(and enterprise agreement) by making an Individual Flexibility Agreement(IFA).

The post will deal with the IFA in relation to awards only.

The IFA provisions are in every modern award and provide that where there is agreement between the employee and employer the award can be varied to meet the "genuine needs" of both parties.

In order to make a valid IFA there must be

agreement in writing both both parties
evidence that the employee is better off overall when compared to the award
explain why they are better off
the variations are resticted to maters dealing with overtime, penalty rates, leave loading, allowances and times for work being performed

What this means is that an employee can effectively contract out of those terms in the award provided that the employee is better off overall as a result.

In many ways, these are the same issues that employers used to deal with when putting AWAs in place.Of course one big difference is that the employees must be better off overall, but , that aside, the IFA provides some real opportunities for employers to streamline their work processes so that they do not have to deal with the cumbersome nature of awards when it comes to remuneration.

Time will tell how the FWA deals with the interpretation of "genuine needs" but for now, provided the correct procedure is followed, you may see IFAs used agreat deal more than they are currently.

Back Pay continues to hit Employers hard

2010-03-23T12:53:00.004+11:00

The hits keep coming for Employers across the country when it comes to investigations by the Fair Work Ombudsman.

The Ombudsman announced today over $100,00.00 in fines from 10 different employers.This included one employer that was ordered to pay $25,000.00 in back pay.

The message is clear. If an employer is not paying proper entitlements to its employers(knowingly or otherwise) it will be invesigated. Not only will it be required to give back pay to all of the employees involved(not just one that complained), but it may also be subject to fines of up to $33,000.00 in fines.

Make sure that you review your remuneration structures and investigate whether you are bound by an award, and if so, which one.

New Right of Entry rules in Confusion

2010-03-19T08:47:00.004+11:00

Employers across the country have been dealt a serious blow by a recent decision by Fair Work Australia on the new right of entry rules.

As you may know, the Fair Work Act relaxed the restrictions on the rights of unions to enter workplaces, making it easier for them to contact memebers and non members during working hours.

However, the rules still provided that at least 24 hours written notice must be given and that the meeting cannot be held at a time or place that will disrupt the business activity of the employer.The union rep that wishes to enter must also hold a valid permit.

The decision of Fair Work Australia was part of a ruling on an enterprise agreement, part of which stated

"An authorised NUW representative is entitled to enter at all reasonable times upon the premises and to interview any employee, but not so as to interfere unreasonably with the employer's business."

This clause is far less restrictive that the provisions of the act and allows the union to bypass its obligations as to time periods and where and when meetings can be held.The use of the word "reasonable" is clearly ambiguous and could lead to abuse of the rules that govern right of entry.

I am surprised by the this decision of FWA, and so , it would seem is the Australian Industry Group, who have indicated that they will appeal the decision.

And now, the Government has entered the fray, with Julia Gillard indicating that the Government will seek to intervene in the case in support of the appeal.This follows a similar intervention on an unrelated matter last month in support of an appeal by Woolworths.

I will keep you posted on developments, as this is a massive issue for employers of all shapes and sizes.

Parental Leave-the race to the top

2010-03-10T11:08:00.004+11:00

Tony Abbot has re-ignited the debate around paid maternity leave with his announcement on Monday that his party will implement a paid scheme if elected.

Essentially, the scheme will allow for around 26 weeks paid leave with a cap on income up to $150,000.00 per annum.That is, for those paid above that figure, they will receive 26 weeks at that figure.This is said to include the current baby bonus, so in other words the bonus will not be paid on top of that.

There has been a mixed reception to the announcement.Small business and unions are very pleased with it(not surprisingly) however bigger business are opposed to it vehemently.Why?Because the scheme is to be funded by a tax on business with a turnover of more that $5 million per annum of 1.7%.This threshold is quite low in the scheme of things and some not many medium size businesses will be caught by it.

This is contrasted by the maternity leave scheme announced by the Government last year (and set to be implemented next year) which provides 18 weeks paid leave, but at the minimum wage.This payment is to be entirely funded by the Government.

The deabte has created what you may think are some unlikely alliances.Big Business(traditionally allies of the conservative party) have lined up with the Government and employee groups(like unions) have lined up with the oppostion.

At seems that at last everyone is in favour of a compulsory paid parental leave scheme-its just the detail and who pays for it that is in dispute.

A likely effect of the Liberal policy is that the more advantageous policies that some big business currently offer may be scaled back to offset against the tax that is to be paid.

Whichever way this falls, parents are certainly the winners as there will be a long overdue paid parental leave policy in this country for the first time.

problems registering enterprise agreements

2010-03-04T08:57:00.000+11:00

There are plenty of hurdles that employers face in having enterprise agreements approved by Fair Work Australia.Not only does the agreement need to pass the relevant test(Better Off Overall test), but also the process in having the agreement registered.

I have noticed, through media releases, that a large number of enterprise agreements are getting rejected by FWA because the process of making and lodging the agreement has not been properly followed.Having advised on a large number of agreements, I can see how this has become a problem, as the expected timetable for notification, providing documentaion to staff, voting and lodging is complex and tight.

Essentially, before the enterprise agreement is even negotiated all of the employees must be notified of the intention to bargain for an agreement.From there, bargaining agents must be appointed, and once the agreement has been settled, a copy must be given to all staff.The agreement must then be voted upon, but not until at least 7 days has elapsed from when the last employee received a copy of the final agreement.

The are also obligations on employers to properly explain the agreement and provide copies of the relevant industrial instrument that it is being compared against.

In relation to the vote, there are rules surrounding that that must be followed and allownaces must be made for those that cannot attend the vote.This becomes more problematic for employers in multiple locations or who have part time and casual staff that may not work on the day of the vote.

All of these matters must be complied with and employers are required to sign a statutory declaration to this effect.

It sounds complicated, and it is.

A media release last week from Fair Work Australia indicated that in the period 22-24 February, 13 agreements were rejected for failing to follow the proper procedure.

Make sure you have complied with the procedures fully as it would be a disappointment to have the agreement kncoked back, even where the substance of the agreement complies.

flexible work practices

2010-02-16T09:23:00.002+11:00

There is a fair bit being said and written about flexible work practices.

Prior to the beginning of last year, there was a lot of lip service paid to this by many employers who said they wanted to do provide it(or said they were providing it), but in reality very few were.

Then the GFC hit and many employers took what was a sensible road and instead of laying off staff completely, reduced their hours.Some of these hours have been increased and some employees were content to keep the same or similar hours for flexibility reasons.Many employers that had not considered these issues are now embracing the concept of flexible working practices

At the same time, the Fair Work laws were passed which made it compulsory to consider flexible working arangement under certain circumstances.

Employers now have an obligation in this regard.Whilst they can refuse any application by an employee of reasonable business grounds, they need to be careful that the grounds for refusal are not unlawful.

Just because the decision cannot be overturned or appealed, does not mean that in some circumstances, employees may not have other legal avenues to pursue.

I true minefield for employers is coming, I suspect.

UnFair Dismissal Claims Soar

2010-02-11T08:29:00.003+11:00

The AFR today has published figures stating that 5208 unfair dismissal claims have been lodged in the first 6 months of the new legislation.Based on last years figures, this is a significant increase.

This news is not all surprising.Prior to 30 June last year, employers in businesses that employed up to 100 people were immune for such claims.

What it shows is that there a lot of businesses that are unaware of their obligations under the new laws.As I have said many times in this space, these claims CAN be validly defended, provided that there are correct systems in place for managing "problem employees", and those systems are followed.

Concerns have been expressed in Parliment that the Ombudsman has been suggesting employers pay "go away" money to employees to get rid of these claims.Whether or not these claims are true, it should not even be an option if the employer follows a very easy process.

Think about it.If you spend a bit of time now getting it right, and you follow the process, you will not have to pay "go away" money, or even spend money on legal fees to defend the claims.The claims will not be brought in the first place .

back pay from non-compliance-Fair Work Ombudsman strikes again

2010-02-05T14:10:00.003+11:00

This is becoming a major issue for employers.

A case has just concluded in Victoria where the Ombudsman had prosecuted a retail employer for a failure to pay proper wages to its employees.The employer owed various employees over $20,000.

This continues a trend of the Fair Work Ombudsman auditing many employers over the past 12 months to investigate these issues.There are numerous examples of employers(whether knowinging or not) have failed to pay proper wages to its employees.

The important message here is that if an employer has not been paying accurate wages and it is audited, it may face legal proceedings from FWA.In most cases, in my experience, employers simply do not know that they are not complying, given the complexity of the awards and other legislation.

Review you wages rates and ensure that you are compliant.It will cost you a lot less to fix things up before the Ombudsman comes knocking on your door.

teething problems with new awards

2010-02-05T08:28:00.002+11:00

As a Father of young children, I know all about the problems encountered with teething....well, some of the new modern awards seem to be going through some similar problems.

Last week, Fair Work Australia made a decision which will affect many retailers who are operating under the modern awards.Employers must now offer employees shifts of a minimum of 3 hours.At first glance , one can see the reasoning for the decision;being that employee would disadvantaged if their shift was only 1-2 hours, particularly if the travel involved in getting to work is lengthy.

However, the AFR today has a story which shows the negative aspect for employees.A school student bhas had his shifts cancelled because they were only 1.5 hours long, and after this decision, the employer must pay him for at least 3 hours.The circumstances here are that the student would go to work in the hardwear store immediately after school, starting at 4pm.The shop is only open until 5.30 pm, thus the short shift.You can see my employees, in this situation, may feel hard done by the new legistlation and awards and it will be interesting to see whether the Government picks up on this issue.

A message for all employers, not only in retail.Carefully look at that new award that governs your workplace as there may be provisions in those awards that are different and increase your obligations to your employees.

Employment Contracts - A Simple Tool in the War for Talent

2010-01-25T09:27:00.004+11:00

It's a new year and everyone's motivated to get the best out of their business. This, of course, means getting the best out of your employess and making sure you not just keep the good ones but motivate them to the best of their potential.

One very simple and highly overlooked tool is their employment contract. We are constantly amazed at how many employers don't give their employees even a basic employment contract. Unfortunately, we get to see the end result, which is inevitably some kind of dispute as to what was agreed in the first place.

Don't forget though that an employment contract can also be used to give your employees some great benefits and incentives as well as to protect your business. Build in some flexibility, bonus schemes or profit share and you'll really see your productivity jump. Besides which, an employment contract shows you're professional, compliant with the latest industrial laws, makes existing employees feel secure and will assist you attract better employees.

A good employment contract is a simple but effective weapon in your war for talent.

Julia Gillard Announces Fair Work Commissioners

2009-12-16T09:22:00.003+11:00

Yesterday, Julia Gillard announced new appointments of Fair Work Australia Commissioners who will play a key role as independent umpires under the new Fair Work Australia system.

For the full press release and short bio on each of the new Commissioners click here

Fair Work Week

2009-12-09T10:30:00.002+11:00

The Minister for Employment and Workplace Relations, Julia Gillard, has announced that Fair Work Week will run from 4-8 January 2010 to highlight elements of the new Fair Work system which comes into full operation on 1st January 2010.

For the full media release click here

To summarise, under the Fair Work sytem:

The system will comprise of a safety net of 10 legislated National Employment Standards and new modern awards
Working parents will have the right to request flexible working hours or additional parental leave
Enterprise level bargaining with the requirement that all employers and employees negotiate in good faith and prohibiting industrial action outside of the bargaining period
Businesses with less than 100 employees will no longer be able to sack employees for no good reason or no reason at all. Fair Work has also removed so-called 'operational reasons' provision

Fair Work will ensure that small businesses have a full 12 months to assess new employees and larger businesses a full 6 months before an unfair dismissal claim could be made.

For more information about the new Fair Work system, visit Fair Work Online at click here or call us on 02 9805 5600.

Welcome to the BlandsLaw Blog: Clerical Award Headache coming for Business

2009-11-23T13:23:00.000+11:00

Welcome to the BlandsLaw Blog: Clerical Award Headache coming for Business

Clerical Award Headache coming for Business

2009-11-17T20:14:00.002+11:00

The AIRC has handed down a decision which may have far reaching consequences for employers that employ staff under the Clerical Award.

Before you say, "well we don't fall into this category", consider again.Basically, if you employ someone who does any kind of clerical work, then you may well be covered, particularly but not only if they are paid by the hour.

Currently, if the emplyee earns more than 15% of above the top award rate( about $851 per week) they are not entitled to various benefits under the award such as overtime/penalty rates and rest breaks.

Not any more.All staff employed in a clerical capacity will be entitled to all benefits under the Clerical Award as of 1 January 2010.That is, employees earning over $851 per week currently may be entitled to overtime if they work more than 38 hours per week.

This is a set back for employers, however there is a glimmer of encouraging news....

An employer may choose to put the employee on a salary and in such a case the provisions of overtime and rest breaks will not apply, providing that the salary is equal to or more than what the employee would have earned on a year basis if paid by the hour.

And here is the hitch.Employers will be required to keep accurate records of hours worked and will need to amend the salaries on a yearly basis to accurately reflect the hours worked and what they would have been paid.

This will be complicated and it will be easy for an employee to fall foul of the provisions outlined.

Another blow to employers from what i have been saying for sometime is the sleeping giant of these IR reforms-the award moderisation process.

Social networking sites

2009-11-13T11:06:00.003+11:00

I was reading an article today on work colleagues and particularly managers becoming "friends" on other people's Facebook sites.Here is the link

http://www.hrdaily.com.au/nl06_news_selected.php?act=2&nav=1&selkey=1320

This issue is fraught with danger on many levels.The obvious issue is whether a manager can be seen as objective and able to properly manage staff where they are linked on facebook and perhaps aware of a fair bit of personal information about that person.What about favourtism where you are a friend with some but not others?

One view would be along the following lines."Relax, don't be a killjoy, it's a bit of fun and you may even get to know your staff memebers better which is a good thing"

The opposing view is "Work is work and this type of social interaction is best left for outside work and where the lines are blurred it is best to stay away"

Most people will be able to see both points of view but from an employer perspective I believe it is best to err on the side of caution and to place restictions on the way Facebook and other social networking sites interface with work issues.

I will give you a real example of how these sites can be problematic in terms of work.A client of mine found that 4 of its employees had a falling out regarding some issues that occured at work.The problem had been pretty minor to begin with but esculated in a major way when one of the employees decided to remove 2 of the others from her Facebook site as "Friends".This went on to cause major resentment amongst the employees and had a significant negative effect on productivity.The issue was eventually resolved however the damage had been done.The point was that the Facebook issue had been a major factor in the dispute getting out of hand.

I am not saying that censorship and bans are the answer but work colleagues will often be on each other's sites and this will need to be managed.Certainly where managers are concerned, it is best to stay away from being Friends on other's sites as the line between work and social/privacy issues may soon easily be crossed.

Social networking is an important issue and this blog will continue over the next while to comment on how it is affected the workplace and what to watch out for.

2009-11-06T09:38:00.002+11:00

As the economy appears to be moving in a positive direction after 18 months of huge uncertainty, employers will soon need to look at the way in which they go about putting on new staff.
A recent article in the AFR pointed out that there is a move towards recruiting new people based on personal referrrals.This seems to be true and there is no doubt that this can assist employers in getting a better idea of the overall makeup of the potential recruit.

That said, it presents some pitfalls that employers(and their staff) need to be aware of-being the dangers of the personal reference.

There has been an increased amount of legal authority over thye past decade that shows that people that provide a reference(either oral or in writing) may be found to be liable where that reference is false, and employers of those providing references may be found liable as well.

As many staff have been laid off in the past 18 months there will be many new people starting jobs in new companys as the economy recovers.It is important that where a presonal reference or recommendation is being provided that it( of course) be accurate, but also that it is clear and unequivocal.In fact, best practice would call for personal references regarding subjuctive commentary best be left alone for fear that the comments made are misunderstood.

Many employers will simply provide a statement of record of employment, and no more, and that would certainly be the preferred approach from liabilty standpoint.

You CAN protect for confidential information....

2009-10-13T09:03:00.002+11:00

Employers can feel more confident about being able to protect its confidential information after a recent decision in the Federal Court.

A magazine published was sucessful in restraining an employee from contacting several of its clients on it's database and thereby gaining a competitive advantage in being able to easily contact those on the database.It was interesting that the strength of the employer's case was increased by the fact the the database was do detailed.The employee had sought to argue that the same information could be gleaned from public sources such as yellow pages.However the employer was able to show that the data base contained information(such as contacts and specific details) that could not be easily obtained elsewhere.

What does this mean for employers?

If you make sure that your employment contract and policies contain strong confidentiality clauses, you will be protected from employees that seek to obtain a competitive advantage when they leave.If there is no such clause however, the chances of sucess will be severely limited.

collective agreements-the window

2009-07-27T11:02:00.002+10:00

There is a slow , but increasing awareness, of the implications of the modern awards that are due to be introduced at the beginning of next year.

Employers are beginning to realize that the modern awards, as presently drafted, will have an effect of increasing wage costs for some businesses, particularly those that employ casuals or provide permanant staff with penalty rates.In some cases the wage increase may be as much as 66%!

What can be done?What I am seeing is many employers coming to us and saying, "what are our options?".Well, the solution in many cases may be;a collective agreement.

Either by way of a non union or union collective agreement, by getting one in place before 1 January next year, employers can effectively contract out of the remuneration aspects of the modern award.

Ofcourse, this does not mean that employees can receive below minimum wage pay, however the collective agreement can be an effective way of of providing flexibility in wages, which is critical for business of all sizes during these trying economic times.

The catch?It needs to be registered by 31 December so the window is closing...

wage freeze is AFPC's last act

2009-07-07T20:46:00.002+10:00

Well they certainly went out the way the came in-in a wave of controversy.

In their last act before coming extinct, the AFPC announced today that there would be no increase to the minimum wage.This decision is not subject to appeal and cannot be reviewed.The minumum wage will next be reviewed in 6 months time by Fair Work Australia.

You can expect employer groups to come out in applause and employees reps to be highly critical.Ofcourse there arguments on both sides for why the decision was fair or not.The employers will no doubt say that it will lead to more jobs being saved and the unions will say that it respresents a net loss of income for employees once inflation is taken into account.
You can see the arguments on both sides however it easy to imagine that those who drafted the Workchoices legislation perhaps did not envisiage the quandry that members of the AFPC were to be in, so shortly after its formation(where it was possible that wages would be frozen).

What does it all mean for employers?If you pay employees the minimum wage you will not need to increase wages for at least another six months.This also goes for those employers that may have paid slightly above the minimum wage who usually would increase wages by a similar amount to continue to keep above the minimum wage.

the time has come...to say fair's fair

2009-07-01T19:43:00.002+10:00

With a nod to the famous line from the Midnight Oil song about another hot topic, today is the today that new newest wave of Industrial legislation hits Australian Business.

From July 1, all Australian companies will be liable for unfair dismissal once again.This blog and our main website have covered in detail the issues that will face Business and it in cludes a "return" to good faith bargaining in the workplace.

The question is.Are you ready?

confidential information

2009-06-17T10:39:00.004+10:00

There was an interesting article in the Financial review yesterday , the title of which was "Client lists a hot issue when staff jump ship"

The article suggested that than was an increase in companies taking action against employees who leave and go to a competitor and take confidential information such as client lists with them.This certainly accords with my experience overs the past 18 months.

There are some lessons to be learned however, if employers want to go down this road.The first and foremost is that they need to have proper protection of their confidential information and the starting point is their employment contract.If a company does not have a well drafted clause concerning confidentail information in its employment contract it may as well kiss that information goodbye when an employee leaves with it.No court is going to support a company's claim for protection if the confidential information clause in the contract is non existant or poorly drafted.

The clause must be specific in terms of including the information that is to be protected but also wide enough to capture all of that information.
A policy which informs employees of their obligations regarding transferring information to memory sticks of Home computers is also advisable.

There are also other ways to protect this information such as having the employees go on gardening leave when they resign and these should be referenced in the contract..Properly drafted restraint clauses will assist-in this regard there has been an increased incidence of employers being able to uphold such restraints provided they are reasonable and well crafted.

Confidential information such as trade secrets and client lists are often vital in an employer maintaining its competitive edge.Don't lose that edge by not attending to a basic business hygiene issue such as your employments contracts.

July 1-are you going to be ready?

2009-05-29T09:13:00.003+10:00

July 1 is fast approaching and many businesses I speak to have not yet focused on what it will need to do to comply with the new unfair dismissal laws.

There is no one size fits all method which will govern business when dealing with performance management and terminating employees.People have talked about a return to the "three strikes and out" policy and that it probably a good guide to follow.The imporatnt part though is ensuring that when you have poor performance meetings and conversations that these are documented so that a paper trail is created that can be referred to and relied upon in the event of dispute.

So, if we are using the "three strikes" policy, what does that mean and how do we measure when warnings should be given?The basic rule of thumb is that the employer will need to give an employee a reasonable opportunity to fix up their performance.Next question:so what does THAT mean.

Each situation will be different but essentially in any discinplinary meeting where warnings are given the employer will need to make clear

what part of the role is being done poorly
how the employer expects the employee to perform that role/duties in the future giving specific goals to be achieved
provide a reasonable timeframe for review allowing for a proper assessment of performance to be made
note when the next meeting for review will be

The more specific the expectations about improved performance, the better.What is a reasonable time frame?This will also depend on what is being measured.In most circumstances a period of less than a month will be seen as not long enough a period to properly measure performance but this will not always be the case.For example, if an employee is failing to produce a weekely report which is part of their expected duties, it could be expected that a reasonable time frame for assessment of performance maybe the very next week that the report is due.A failure to provide that report may entitle the employer to provide a further warning.

There a lots of trips and traps in this process and I recommend a proper process be put in place which can be easily followed by those who manage staff.

the budget and paid maternity leave

2009-05-14T13:52:00.002+10:00

In somewhat of a surprise given the Global Economic Climate, the Government has announced that it will indeed introduce a paid maternity leave scheme.Many pundits, including myself, had concluded that the Government would probably postpone the scheme and it is certainly a welcome innitiative from both a community and business perspective.
The details are

it will apply to all primary care givers
the payments will be for 18 weeks at the Federal minimum wage
the leave must be taken within 12 months of the birth or adoption of the child
it is means tested to employees earning less than 15ok per year
employees will have to have worked for 10 of the previous 13 months to apply
contractors, casuals and self employed will be included

I see it as a real plus for business, particularly as the Government will fully fund the leave period.It will mean that a valuable resource to a business can be retained as it will provide a real incentive for working parents to remain in the workforce.Well done to the Government.Whilst long overdue it is better late than not at all

and now its law

2009-03-23T21:21:00.002+11:00

Well it's through.Finally.I am a little late commenting on this as I am still getting over another tough loss for the beloved Sea Eagles.....don't mention the wooden spoon, anyone!

After a day of high drama on Friday, Julia Gillard struck a deal with Senator Fielding on a compromised position for the definition of small business.

What is going to happen is this.From 1 July this year small business will be measured as a business that has fewer the the equivilant of 15 full time employees.A full time employee will be measured as one whose previous 12 months weekly earnings are at a full time rate.(see main site for details).

That is the part the Senator wanted.

However, from 1 January 2011, the position will revert to what the Government wanted;fewer than 15 employees, no matter the classification.

So everyone's a winner unless you believe some of the media commentators(and the government!) who say that the oppostion was effectively sidelined in the debate.

Either way, it's goodbye Workchoices and Hello, "Fair Work Australia"....

Welcome to the BlandsLaw Blog: Fair Work Bill passed in Senate(sort of...)

2009-03-23T12:48:00.000+11:00

Welcome to the BlandsLaw Blog: Fair Work Bill passed in Senate(sort of...)

Fair Work Bill passed in Senate(sort of...)

2009-03-20T08:25:00.002+11:00

The Senate last night passed the Fair Work Bill.Does that means that the process is over?

No.

The problem is that there was one crucial amendment-the one changing the definition of small business from fewer than 15 to fewer than 20 employees.(see yesterday's post for history).

The Government has said they will not accept this and that was confirmed by the PM just minutes ago on the ABC AM programme.They say they have a clear mandate on the issue and Bob Brown of the Greens agrees.

According to Labor, the amendment affects over 500 000 employees.But lets put this in perspective.It's not as though small business, whatever the definition, is going to be exempt from claims for unfair dismissal.It's just that they will have a 12 month qualification period in which to dismiss employees without liability, as opposed to 6 months.They will also be subject to a more informal Code as well(more details are on the main site)

So Workchoices lives for another day.Malcolm Turnbull last year said that the opposition would support the IR amendments providing Workchoices was given a proper burial.This burial is turning more farcical by the day....

senate showdown

2009-03-19T13:41:00.002+11:00

It's all happening in the "House of review".The often disrespected upper House chamber( Paul Keating called them unrepresetative swill) in on the verge of knocking back the Government's legislation, the details of which you can find summarised on the main website.

It would seem that Senator Xenophon is refusing to budge on a requested amendment that the definition of a small business be lifted to 20 employees.The proposed legislation calls for the cap to be at 15.

The Government (quite rightly in my view) says they have a mandate for their position on unfair dismissal as they took that specific number to the last election.At present, Workchoices has the cap at 100 employees.

There is still a day to go before Parliament rises for several months and given that the Government wants several of these laws to take effect from 1 July, you can expect high tension to come out of the Senate in the next 24 hours.

This comes on the back of the the alcho-pop debacle yesterday where one independent senator brought down the whole Bill.The same fait could be be-falling the IR bill as well.No matter what side of the political fence you are, I think we have got to seriously re-consider a system where one independent senator, who did not campaign on the issues being debated can have the power to bring down a Bill, particularly if the Bill has a mandate from the previous election.

People may say, well look what happened when one party controlled both houses( and I agree that too is unsatisfactory) but there has to be another way....

fair work bill still not done

2009-03-11T21:29:00.002+11:00

As predicted in my previous post, the oppostion has stiffened it stance towards the IR legislation that the Government is trying to get through the Senate.

Although their stance is unclear in total, they appear to be adopting the position of AIG in stating that Labor does not have a mandate for at least part of the Bill.(the parts dealing with Right of Entry and good faith bargaining)For more detail see our summaries on the main part of the site.

However, they also appear to be looking to change their position on the unfair dismissal legislation as well.Currently, the bill provides for small business to be treated differently to the rest of business.The Libs seem to be looking at adopting a position which either raises the bar on the threshold of fewer than 15 employees when defining small business or perhaps suggesting that employee count should be for full time employees only.The theory is that a "small business" under the proposed law would include a business with 14 workers that are employed part time whilst a business with 16 full time employees would not be.

My view on this is that at the end of it all there needs to be a cut-off and people will always be able to point to an inconsistancy.But to look at raising the Bar to 40 or 50 employees as Senator Joyce has suggested, would be way outside what most people would consider to be a small business.

In any event, Julia Gillard appears to be taking a "no-speaks" line with the opposition preferring to deal with the estemed independants Senators from South Australia instead.

It looks like we will hear of a resolution shortly....

On a different note, I am pleased to see that the football season is almost upon us.The mighty Sea Eagles look to repeat in the League for the first time since the Broncos did it in 92-93, but in the era of the salary cap, that will be a tough ask.The puppy dogs should not prove too difficult this wekend though.

And we are only a week away from the start of the AFL season.Even though I am a Sydney boy, I got on the tigers when I lived there a few years back and am looking for them to crash though with their new star recruit.

2009-02-19T17:06:00.002+11:00

With media attention firmly on the Global Financial Crisis (now know as GFC-It was only a matter of time, wasn't it, before this was reduced to an acronym!!) the Fair Work Bill has received little attention lately whilst it quietly goes through a Senate Enquiry.

All and sundry have made submissions about the Bill and over the past few days it has been the turn of Australian Industry Group (you can guess the acronym).And I have got to say that I agree with their part of their comments with regard to the new Transmission of Business Laws and Right of entry powers for unions.

CEO Heather Ridout said that these issues and others were not put to the electorate during the last election campaign and that there is no mandate for those changes.This is true.Many people without a detailed knowledge of the IR landscape may not know that

the bill proposes that the transmission of business rules are to change.Currently on sale or transfer of business an indsutrial instrument such as a collective agreement will only transfer to the new owner for a period of 12 months.At that time employees will either return to an award or move to a different agreement.The Bill says that the agreement will continue until it is terminated, which could be 5 years into the future.
there are provisions in the new legislation that give a great deal more power to unions.For example, Unions will be able to enter workplaces even if there is no union rep employed.They will also be the automatic default bargaining agent(unless an employees expressly appoint someone else).My experience is that in most cases employees do not appoint a bargaining agent, which will enable the union to enter the bargaining process by default.
Unions will be able to be parties to agreements in a much easier fashion than before even though the may be no valid reason for them to be.
There are more examples with regard to industrail action issues

Don't get me wrong.This is not Union bashing and many of the changes made in the bill are fair and reasonable. However on an objective analysis the union movement certainly seems to have benefited in a far greater way from the consultative process prior to the introduction of the legislation than employers.

The oppostion is on record as saying that they will not stand in the way of a "fair burial of workchoices".The question is whether they continue to think that the burial is a fair one....

2009-02-03T19:31:00.002+11:00

There was an interesting article in the New York Times on Monday regarding the way firms will their clients.Here is a snippet;

Lawyers are having trouble defending the most basic yardstick of the legal business — the billable hour.
Clients have complained for years that the practice of billing for each hour worked can encourage law firms to prolong a client’s problem rather than solve it. But the rough economic climate is making clients more demanding, leading many law firms to rethink their business model.
“This is the time to get rid of the billable hour,” said Evan R. Chesler, presiding partner at Cravath, Swaine & Moore in New York, one of a number of large firms whose most senior lawyers bill more than $800 an hour.
“Clients are concerned about the budgets, more so than perhaps a year or two ago,” he added, with a lawyer’s gift for understatement.

It is amazing the some of these big firms are only just coming to this new reality.Audstralian firms are similarly very slow to come to the party.Blandslaw, since its inception, 3 years ago has offered its clients several different options in regard to the way it charges its clients.Our most common form of billing, by far, is a "fixed fee" arrangement where an agreed figure is set and if the fees goes over that, no more than the agreed amount is charged.This is very different to the "estimate" which most lawyers give their clients at the beginning of a matter and is subject to and usually does change.
Our experience is that client do not want to feel like there is a ticking clock in the background every time they pick up the phone to call their lawyer.We agree, and often the most efficient and useful conversations occur when the client is relaxed and not worrying about the issue of cost every time they speak with the lawyer.

There are other ways that lawyers can structure their fees, in some circumstances based partly on success (as long as this does not breach law society guidelines.The point is , though, that there are only a small number of types of cased in which the billable hour method of invoicing is still relevant.It is interesting to see that the Chief Justice of NSW has also today chimed into this debate.Perhaps this will assist in bringing the issue to the forefront in relation to the way most legal firms deal with their clients on this issue.

Employment Update

2009-01-28T08:49:00.002+11:00

Happy new year to everyone.

Most people are now back at work after the Australia Day break and will be starting to implement some of the goals they have made for their business over the Summer break.

On the Employment front, it is no secret that the current financial uncertainty has led to many business cutting staff numbers.

I predict these will continue to be a common theme for the rest of the year. Which brings me to my point; Forward with Fairness(FWF), the Governments Industrial relations reforms will continue to be implemented through this year and will have a large impact on employee relations.

Next up for FWF is the overhaul of work choices unfair dismissal laws. Now like them or hate them, work choices basically gave a free pass to any business with less than 100 employees in relation to the circumstances in which staff were dismissed. As long as the reason were not based on discriminatory grounds, these business could dismiss employees for any reason, without the need for warnings or the like.

As of 1 July? Not any more...

Businesses with between 16 and 100 employees will now be subject to unfair dismissal laws and they will need to, in short, ensure that employees are given a reasonable opportunity to improve performance. Whilst there is no set formulae, the “3 strikes and you’re out!” culture will in some way be returning.

For Businesses with 1-15 employees, the rules will be slightly less imposing.

More detailed information can be found at www.blandslaw.com.au

While you are there, check out our offers in relation to getting your business ready for these changes. We have a range of options for you to ensure that your business is compliant and ready to go.

Bye for now but please give us your feedback and send us a message on what you would like to see covered here.

Andrew Bland

minimum wage desision

2008-07-09T17:29:00.002+10:00

The Fair Pay Commission handed down its latest decision on the minimum wage in Australia

More than 1 million workers are covered and affected by the decision to lift the minimum wage by $21.66 per week.

That was double what employer groups had hoped for and approximately 75% of what the unions movement proposed.

The rise takes effect from the 1 October 2008.

What this means is that if an employer is currently paying some or all of its employees the minimum wage, those employers will be bound by the pay increase.

If employers are paying employees above the minimum wage, they will not be bound by the decision except to the extent that the the new minimum wage is under the employee rate of pay.For example, if an employee was receiving $10 per week above the minimum wage, the wage decision will bind the employer to increase the wage by at least the difference being $11.66 per week ($21.66 less $10).

Employers who are subject to Australian Fair Pay Decisions in its collective agreements or AWA's will also need to adhere to the decision.

It is not for me to comment on the economic effect of the decision but one thing you can be sure of: there will be lots of different views out there on whether it will be good or bad...

business looks a winner at COAG

2008-07-04T12:49:00.002+10:00

It looks as though business has scored a big win from yesterdays COAG meeting between the Federal and State Governments.

The States and Federal Governments have reached an in principle agreement to nationalize many of the rules and regulation covering business at the moment.The effect will be that for business operating in more than one state, it will soon only need to deal with one set of laws and regulation rather than different ones for each state.

As you know, there is now a Federal IR system that covers approximately 85% of all business.COAG has proposed unifying laws covering business in the following areas

OHS
Licensing if Tradespeople
Registering business names
standard business reporting
a national electronic conveyancing system
Rules on mortgage broking and other lending institutions
Rules governing Credit cards and personal loans
personal property securities
Environmental Assessment
Rules governing chemicals and plastics
product safety laws

The long overdue replacement of the current archaic system of a different law for each state will be a huge relief for business as they deal with the many layers of regulation it faces in running a business.The only downside it that the new system will not be in operation for another 12 months!

Stay tuned for further details

new legislation in parliament

2008-07-03T16:45:00.002+10:00

Those keenly awaiting the second wave of workplace reform will be happy to know that the government introduced its next piece of the puzzle late last month.

The legislation covers the 10 National Employment Standards (NES) that will cover all workplaces in Australia.

The current 5 compulsory conditions remain( being Annual Leave, Personal Leave, Parental leave, Minimum wage safety net and maximum hours of work) and there are 5 others being

Long Service Leave
Flexible working conditions
Public Holidays
Community Service (incl Jury leave)
Redundancy

For detailed commentary on this please visit our range of articles at www.blandslaw.com.au however a few short points of note

Parental leave has some interesting changes.Both the mother and father will be entitled to 12 separate 12 month periods of unpaid leave as long as each is the primary care giver.
Parents with children less than school age will be able to request flexible working hours to fit in with family needs
Redundancy for all employees who work in businesses with more than 15 employees will be an entitlement, not just those employed under an award.Where more generous policies are in place at a workplace , those provisions will apply.This is, i believe, a significant development for employers.It is a little known fact that currently most employees in Australia do not have ANY entitlement to redundancy payments

I think from a social position , these changes provide some big benefits to employees in terms of entitlements to pursue a better balance between work and home.Smaller employers may find, however, that some of the standards such as flexible working hours and increased provisions for parental leave may be a burden.

That said, smart employers are already allowing its employees increased flexibility in many areas of the employment relationship.

Bye for now.

notice in employment contracts

2008-06-02T11:03:00.002+10:00

The notice period in employments contracts is a crucial part of the agreement between the employer and its employees.

Careful consideration should be given as to the length of the notice period and whether the employer would want to employee to leave earlier that the period of notice where they were fired or resigned.

For example an employee familiar with the IT system of a company may have the capacity to sabotage the system if they were to end employment in negative circumstances.A clause which allowed the employee to be paid in lieu would overcome that problem.In those circumstances a shorter period of notice should be considered as there would be no need for a handover.

On the other hand, with an employee in, say, the sales area ,with access to customers, the employer may want a longer period of notice.The main reason for this is that it is an effective way of stopping an employee moving to a competitor and having contact with those customers before the employer has had a chance to "bed down" those customers with a replacement employee.

Coming soon- some ways in which you can keep employees from affecting your business after they have been terminated or resigned.

AWAs history as of today

2008-03-28T12:18:00.002+11:00

Hi all.

been away on leave and i come back to see that the legislation has now be passed and was proclaimed yesterday.What does all this mean?

Well, from today AWAs are history.No more can be made.

That said, if a company had an AWA registered prior to 1 December 2007, it can continue with a similar type agreement called an Interim Employment transitional Agreement(IETA).These can be made until the 31 December 2009.

One further point.If you do enter into an ITEA the agreement will be subject to a fill No Disadvantage test.You will need to compare the agreement to the award an ensure that the employees are not worse off than the award.

This is the first wave of the new legislation.Laws dealing with Unfair Dismissal, right of entry and industrial action will follow.

more on the IR legislation and congratulations

2008-02-25T17:53:00.002+11:00

Well it seems that the legislation will pass the parliament before or around Easter which is only a month away.The opposition have agreed to reduce the time taken for the Senate inquiry which some commentators have called another rollover.....

I will keep you advised as further information comes to hand but it looks like the first piece of the IR rollback will go through without any major problems.

And congratulations to John Hart for being appointed a member of the small business working group for the new IR legislation.John is the head of Restaurant & Catering Australia has will make a valuable contribution i feel sure.

AWAs-Opposition drops its stance

2008-02-19T13:22:00.000+11:00

It looks as though the new Industrial relations legislation may have an easier passage than many first thought.There are reports that the Coalition Shadow ministry has overruled Brendon Nelson and Julie Bishop and will no longer oppose the abolition of AWAs.

Perhaps there will no longer be the need for such a lengthy Senate Inquiry but time will tell.

Stay tuned for more news on this!!

new Industrial relations legislation has been introduced

2008-02-15T10:58:00.000+11:00

After being one of the major issues in last year's election campaign, the new Government has introduced this week its first wave of new legislation.Given that the opposition still controls the Senate until 3o June, it is unlikely that the legislation will be passed quickly.

The first wave of legislation seeks to

ban new AWAs
re-introduce the no disadvantage test
establish ITEAs
giving the AIRC a role in the award modernisation process

AWAs

From when the legislation is passed all new AWAs will be banned.However all existing AWAs will remain in place until the expiry date.

No Disadvantage Test

This test will be similar to what was in place prior to workchoices and will replace the Fairness test that currently is in play.

Basically, any new workplace agreement will need to pass a test which ensures that the agreement does not disadvantage workers when compared to what they would receive under an award or other relevant industrial instrument.

ITEAs

Interim Transitional Employment Agreements (ITEA) have been introduced.

This will be available to employees who, as at December 1 2007, had employees on individual agreements including but not limited to AWAs.

These ITEAs are by definition transitional and will only be in force up to December 31 2009.

After that no statutory individual agreements will be available

Award Modernisation

The new legislation also calls for awards to be "modernised".It is not clear what this actually means however we know the AIRC will be involved and certain industries will be given priority in the process.

Comment

This is the first part of what promises to be the second "workplace revolution " this decade.

Labor has said that its first priority is to eliminate AWAs and this bill achieves that goal.Time will tell whether the Bill passes the Senate in its current form. As I said, the coalition is on record as saying they will oppose it.

Stay tuned for further developments as the legislation is rolled out and feel free to post your questions and comments.

welcome

2008-02-15T10:51:00.000+11:00

Welcome all to the Blandslaw blog.

The idea of this blog is to provide informal but informative opinion on a range of business legal subjects. For further information and more in depth analysis please visit our website at www.blandslaw.com.au

Hope you enjoy the blog and feel free to post us your feedback. We would also like to encourage discussion via questions/comments.