2017 - Employment Law Master Class Booklet

MASTER CLASS IN EMPLOYMENT LAW

1800 888 479 www.mga.asn.au

All employers are keen to maintain productive, harassment-free workplaces, and it should be reiterated that every employer would support making their workplace a safe one. Most employers would be aware of the need to have policies and procedures in place to provide for the wellbeing of their employees. These measures help to prevent the serious legal and financial implications that would inevitably result in bullying is proven to have occurred in the workplace. Providing a safe workplace is vital but as has been pointed out, redress for workplace bullying can be sought in many jurisdictions, and sometimes in more than one jurisdiction.

The purpose of this booklet is to explore the meaning of workplace bullying and how it is treated in each jurisdiction. Further, we will outline the effects of workplace bullying and strategies to avoid its occurrence. We discuss the importance of establishing a workplace culture which fosters respect for each individual no matter what their status is in the organisation, and a workplace environment in which employees and the employer enjoy open communication without fear of threats or retribution in the event of a problem at work.

Bullying problems between employees, and between managers and employees, may happen, and an employers best method of dealing with these situations is to have a clear zero tolerance policy, and clear guidelines on how to deal with a bullying claim.

This booklet will provide you with a precise procedure for addressing a bullying issue.

Case studies will be incorporated to outline the consequences of a poorly managed bullying complaint, and the ultimate aim of the booklet will be to empower an organisation to effectively manage a bullying complaint and ensure the work environment is free from any hostilities.

Disclaimer: This document is intended only to provide a summary of the subject matter covered. It does not purport to be comprehensive or to render legal advice. No reader should act on the basis of any matter contained in this publication without first obtaining specific professional advice. Š Master Grocers Australia

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Introduction The purpose of this class is to provide the participants with an understanding of the workplace laws in Australia with specific emphasis on the retail industry.

Australia has one of the most detailed and complex systems of industrial relations and all Australian businesses should understand how the system functions in order to work efficiently within the system and avoid complications that are likely to arise without an understanding of the law. Having knowledge of the how the law functions in our workplaces will help to avoid expensive litigation and establish a productive workplace.

The contents of this Master Class will cover a range of issues including:

4. Agreements

1. Overview of Employment laws in Australia

• Future Agreements;

• The Fair Work Act (2009) - its objectives and its role in regulating workplaces;

• Role of Agreements in a take- over of business.

• The Fair Work Commission - its composition and functions;

5. Managing Employees

• The Fair Work Ombudsman - role and function.

2. The National Employment Standards • The purpose of the Standards; • An examination of all the Standards and their relevance for employers and employees (includes maximum hours of work, all forms of leave, public holidays, termination and redundancy payments, Fair Work Information Statement).

• Current agreements;

• Dealing with Difficult Employees > Performance Management > Termination of employment > Using a correct process for termination >

Summary dismissal

>

Constructive dismissal

>

Abandonment of employment

• Unfair Dismissal Applications • General Protections claims

3. The Award System

• Prevention and dealing with Sexual Harassment

• Main features of the General Retail Award;

• Workplace Bullying- avoiding and dealing with problems

• Wages, Penalties, Rosters ;

• Long term Illness

• Flexibility Arrangements;

6. Superannuation

• Future of the Award.

• Which fund for employees?

> Flexibility

• Superannuation for juniors

> Penalties > Casual to permanent employment > Management contracts

• Superannuation and workers compensation.

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1. An Overview of the Employment laws in Australia (i) The Fair Work Act (2009) The Fair Work Act (the Act) sets out the rules for the operation of our industrial relations laws. It came into existence following the period in which the Howard Government had introduced what came to be known as ‘WorkChoices.’

WorkChoices resulted from amendments made to the previous Workplace Relations Act (1996) which introduced radical reforms such as no penalties on Sundays, right of an employer to eliminate breaks from employment, “all in rates” of pay no matter when an employee worked, removal of the ‘no disadvantage test’ and eliminating unfair dismissal laws for businesses with less than 100 employees . The result was a massive outcry from trade unions and workers and even some employers who saw the reforms as too extreme.

The result was that a new Government, driven by public outrage, framed new laws and the result was the current Fair Work, including modernisation of awards.

What is so important about the Fair Work Act for employers and employees?

It sets out laws that are intended to provide a ‘balanced framework for cooperative and productive workplace relations that promotes national economic prosperity and social inclusion for all…..’

The changes to the law are intended to provide a uniform award system, flexibility in the workplace, a fair set of terms and conditions that apply to everyone, minimum wages, family friendly arrangements, enterprise bargaining opportunities and protection against unfair treatment at work. (ii). The Fair Work Commission The Fair Work Commission (FWC) is the organisation that has been given powers under the Fair Work Act to make decisions under the Fair Work Act on a range of employment matters including: • • • • • •

Modern awards Enterprise agreements Setting Minimum wages Unfair dismissal applications Industrial action And more

Structurally the FWC has a President, a number of deputy Presidents. Commissioners and Wage Panel members. The FWC must perform the following duties and be (section 577): a. fair and just b. deliver quick, informal decisions, avoiding unnecessary technicalities c. be open and transparent and d. promote harmonious and cooperative workplace relations.

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The FWC hears and settles disputes between employers and trade unions and hears complaints such as bullying and unfair dismissal claims. The FWC will always try to settle a matter between the parties by conciliation but if they can’t reach a resolution then it will make a legally binding decision. (iii). The Fair Work Ombudsman (FWO) The FWO enforces compliance with the Fair Work Act, related legislation, awards and registered agreements. The FWO also provides advice and education on pay rates and workplace conditions.

In some situations, the FWO investigates possible breaches of workplace laws. During a workplace investigation the FWO collects and examines evidence to make decisions about: • • • •

Legal interpretation The application of an industrial award or registered agreement.

Lawful procedures – award rates Underpayment of wages investigations

The FWO investigates matters if they decide a claim is very serious or the issue is widespread. During an investigation, the FWO gathers evidence related to the request, such as time and wages records, employment contracts and other documents depending on what’s being investigated. Fair Work Inspectors have the power to require people to give us records or documents relating to the investigation.

The FWO decide the most appropriate outcomes to follow an investigation. Outcomes of an investigation may result in no further action or in some circumstances: • Contravention letters telling the employer which law/s they have broken and how they can to fix the issue • Letter of caution - giving the person who has broken the law a formal warning, which the FWO might rely on in the future if they break the law again • Compliance notice - a notice issued by a Fair Work Inspector (an Inspector) which requires an employer to fix a breach of an Australian workplace law.

• Infringement notice - Similar to an on-the-spot fine, it can be issued by a an Inspector to an employer who doesn’t follow its record-keeping and pay slip obligations.

Fines can be up to $540 per breach for an individual and up to $2700 per breach for a corporation.

• Enforceable undertaking – an agreement between the FWO and employer regarding co compliance with a workplace law.

• Compliance Partnerships- a collaborative relationship between the FWO and a business that want to publicly demonstrate their commitment to creating a compliant and productive workplace.

• Referral to small claims • FWO litigation

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2. The National Employment Standards The National Employment Standards, or the NES, set out the minimum conditions of employment that apply to all Australian employees regardless of whether they are covered by an award or an agreement or even if they are award free. The National Employment Standards (NES) are the 10 standards that apply to all employees under the General Retail Award or Agreement, in accordance with the Fair Work Act 2009. They include: i. Maximum Weekly Hours The maximum number of working hours for a full time employee is 38 hours. For all other employees the number is less than 38 hours ordinary hours in a week. An employee can be requested to work reasonable additional hours but an employee can refuse depending on factors such as OHS matters , family requirements or patterns of work in the industry. ii. Flexible Working Hours For most employees they have set hours of work but an employee but an employee can always make a request for flexible working hours. The request must be in writing and the employee must show reasons why this request is made. There are a number of circumstances that an employee may use as a reason for the request such as – • • • • • •

responsibility for caring for a young child being a carer having a disability being older than 55 years an employee experiencing domestic violence caring or supporting a family member

The request may be refused on reasonable business grounds such as cost, capacity to change the workplace or impractical to change, reduce workplace efficiency or significant impact on customer service. The reasons must be given to the employer in writing. If a flexibility arrangement is agreed by the employer there should be a written agreement between the employer and the employee. iii. Parental Leave An employee is entitled to 12 months unpaid leave after 12 months continuous service.

An employee may request a further period of parental leave of 12 months leave, which can be reasonably refused on business grounds.

An employee may be entitled to a period of paid parental leave subject to the length of the employment. This can apply to permanent and casual employees and the employer should be registered with Centrelink as the payments are made through the employer’s payroll.

An employee’s partner may be entitled to Dad and Partner payment. As an eligible working dad or partner he or she can receive up to two weeks of government-funded pay at the

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rate of the National Minimum Wage when on unpaid leave from work or not working.

This amount is paid directly into the employees account and is not paid through the Centrelink system. iv. Annual Leave Full time and part time employees are entitled to four weeks annual leave per year of employment. This accrues progressively throughout the year based on the number of hours worked. Annual leave continues to accrue when an employee takes a period of paid annual leave or carers/personal leave. Annual leave does not accrue on any form of unpaid leave unless it is provided for in an award or agreement.

Employees under the General Retail Industry Award can voluntarily cash out annual leave or some of their annual leave.

To cash out annual leave employees need to have: • at least 4 weeks annual leave left after the cash out • a signed written agreement with the employer that outlines the amount of leave being cashed out, the amount they will be paid and the date it will be paid.

• If the employee is under 18 yearstheir parent or guardian must also sign it.

You must keep the agreement for your records.

Each cashing out of a particular amount of accrued paid annual leave must be a separate agreement between you and the employee; The payment for cashed out annual leave has to be the same as what the employee would have been paid if they took the leave (including leave loading).

An employee cannot cash out more than 2 weeks annual leave each 12 months.

You can’t force or pressure an employee to cash out annual leave and you do not have to agree to an employee’s request to make a cashing-out agreement.

If your store has an enterprise bargaining agreement, you will need to check whether it contains a cashing out clause before you can cash out an employee’s annual leave.. v. Personal /Carer’s leave 10 days for employees (other than casuals), 2 days unpaid carer’s leave (includes casuals), additional 2 days compassionate leave (unpaid for casuals).An employee may reasonably refuse to work on a public holiday. vi. Community Service leave Jury service-paid up to 10 days - reduced by any other payment; Voluntary emergency service-unpaid. vii. Long Service Leave Existing State or territory laws will continue to operate.

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viii. Public Holidays Full time and part time employees allowed to be absent from work and paid on public holidays. An employer can request an employee to work but employee may be refuse.

However such matters as the nature of the employment, personal circumstances and whether it is reasonable to expect the employee to work on that day will be taken into account. ix. Notice of Termination and Redundancy Employer must provide written notice of termination, notice or payment in lieu, redundancy is payable except for a small employer who has 14 employees or less. When considering redundancy it is advisable to seek advice from MGA beforehand as it is important to follow a correct process. Such matters and advising the employee before actually carrying out redundancy and looking to see what options there might be for alternative positions. Consideration should be given as to the number of casuals in the business before permanent staff are made redundant. You should consider how work will be distributed amongst other positions. x. Fair Work Information Statement All new employees must receive a current copy of Fair Work Information Statement. A copy of the statement is attached.

3. Modern Awards In 2008 the Federal Government made a decision to modernise the Australian award system. Each State and Territory had its own retail industry award with separate wage rates, different rules relating to penalties and loadings and various clauses relating to hours of work. The system was undoubtedly out of date but, establishing uniformity throughout the country was never going to be easy.

Fair Work Australia (FWA) which was established to oversee the introduction of a federal industrial relations system considered all the retail awards in Australia and established one retail award, the General Retail Industry award (GRA), originally for all employers who were companies and are already part of the federal system. At first those businesses, which were sole traders and partnerships (and some trusts), remained in the State system. However, in 2010 the States handed over their industrial relations powers to the Federal Government and now all States and Territories (with the exception of Western in respect of sole traders, partnerships and some trusts) Australia) are part of the federal system, which was fully implemented on January 1 2014.

The General Retail Industry Award The GRA was made in 2010 was intended to apply to all retail employers and employees.

It is also the basis for making an agreement which will only be approved if it has benefits that are better than the award.

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The Main aspects of the GRA are as follows:

Award Flexibility The modern GRA contains a flexibility clause which permits employers and employees to enter into arrangements outside the award, which suits their particular needs. However, when making such flexibility arrangements, certain criteria need to be met to ensure that both the employer and the employee are protected.

The criteria required to make a flexibility arrangement are as follows: 1. The arrangement can only be entered into after the employee has commenced employment. A prior arrangement is not permissible.

2. The arrangement cannot relate to wages and may only refer to penalty rates, leave loading, arrangements as to when work is performed, overtime rates and allowances.

3. The arrangements must not disadvantage the employees and any arrangement must satisfy the “better off overall test”.

4. The flexibility arrangement can be terminated at any time by either party giving the other party four weeks’ notice. The agreement will terminate at the end of the four weeks or at any other time by agreement.

Once the employer and an employee have agreed to vary certain terms of the award the agreement must: (a) be in writing, name the parties to the agreement and be signed by the both the employer and the employee and, if the employee is under 18 years of age, the employee’s parent or guardian; (b) state the clause in the award that the employer and the employee have agreed to vary; (c) set out how the clause in the award has been varied by agreement between the employer and the employee state how the agreement does not disadvantage the employee; and (d) state the commencement date of the agreement; and (e) give the employee a copy of the agreement and keep the agreement as a time and wages record.

If an employee’s understanding of written English is limited the employer must take measures, including translation into an appropriate language, to ensure the employee understands the proposal.

Please note that the arrangement is an individual arrangement and can only be made with each employee.

The employer and the employee must have genuinely made the agreement without coercion or duress by either party.

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Consultation and Dispute Resolution Consultation regarding major workplace change If major changes are to be made in the workplace by an employer that are likely to have a great effect on employees, then employees and their representatives, if any, must be notified.

Matters that are likely to impact on employees include: Significant effects such as job losses, changes in the size of the workforce, changes to the skills required in the business, job security, changes to working hours, the need to transfer employees to other locations, job alterations. This is particularly applicable to redundancy.

It is vital that the employer consults with employees as soon as possible after making a decision to change the workplace by making staff redundant.

Employees must be told of how they are likely to be affected as soon as practically possible after the employer has decided to make the changes. This should be followed by discussions with the employees and written information about the changes should be provided to employees as to how they may be affected.

An employer is not required to disclose confidential business information in the above situations.

Dispute resolution If a there is conflict over a clause in the award or in relation to one of the National Employment Standards that cannot be resolved at work then it may be referred to Fair Work Australia.

If the matter is not settled then Fair Work Australia may use whatever procedures are permitted under the Fair Work Act to settle the problem.

The employer or the employee may appoint another person, organisation or association to assist them.

Work will continue as normal while the problem is being resolved.

Types of Employment: Full time/Part time/Casual An employee will be either: Full time, part time or casual When an employee is hired, it is preferable to provide the employee with a letter that informs the employee the name of the award that they will be working under and whether they are full time, part time or casual.

Full Time Employees Hours of work • 38 hours per week

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Part Time Employees Hours of work • Less than 38 hours per week • Have reasonably predictable hours When employing a part time employee, the employer must enter into a written agreement with the employee, agreeing to the number of hours which will be offered.

Suggested Format of the Agreement: Dear Employee We wish to provide you with the hours and times that you will be working for [Name of Store] as a part time employee. If we need to vary your hours of work in any way we will consult with you and seek your agreement in writing prior to any changes being made.

If you accept the hours of part time work set out here please sign this letter and return your Manager.

The days of your employment will be: [state the days] The hours of work each day will be: [state the number of hours] Start time: Finish time: Please note that any variation to the above roster times etc will be made by giving you seven days’ notice in writing or in an emergency we will give you 48 hours’ notice.

1. Your minimum daily engagement will be three hours.

2. Paid tea break (time and length): 3. Unpaid lunch break (time and length): 4. Please retain a copy of this agreement Yours sincerely [Name of Retailer] Where an employee is expected to work outside the agreed hours, without consent then overtime is payable.

Casual employees Hours of Work A casual employee • is engaged by the hour • has no right to predictable hours • must be employed for a minimum of 3 hours per shift

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A casual employee is entitled to be paid the ordinary hourly rate plus an additional 25% per hour. If the award under which the employee was previously employed had a penalty of less than 25% there will be an increase to the original penalty of 20% each year as from July 1 2010.

A casual employee shall receive 10% additional payment for work on Saturday between 7am and 6 pm.

The minimum period of employment for a casual employee is 3 hours.

Junior casual employees A casual employee may be employed for 1.5 hours provided that the following apply: • the employee is a full time secondary school student • the employee is engaged to work between 3.00pm and 6.30pm on a school day and: • the employee agrees to work (and a parent or guardian agrees to allow the employee to work a shorter period than 3 hours) and: • employment for a longer period is not possible because of the operational requirements of the employer or the unavailability of the employee.

Casual Conversion A number of previous Retail Awards had clauses which required employers to convert casual employees to permanent status.

Employers under the General Retail Industry Award are at this time not required to convert the position of a casual employee to that of a full time or part time employee. It should be noted, however, that there are some Awards that do provide for the conversion of a casual employees status to that of a permanent member of staff and the Fair Work Commission is considering the inclusion of a casual conversion clause in the GRA. It should be noted that as an employer you are entitled to ask an employee if they would like to alter their status if that is your decision. However, as an employer under the General Retail Industry Award you are not required to make any conversion under either the Fair Work Act or the General Retail Award.

Employee Classifications ll employees working in the store must be placed into a classification and should be paid accordingly.

The classifications commence at Levels 1 which is the base rate and increase to Level 8 according to the level of duties performed. Level 1 also provides for payment of the base rate according to the employee’s age.

There are provisions for certain categories of Trainees and Apprentices and wages for these groups will vary according to their age and progress.

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Allowances Meal Meal Allowance Meal allowances are payable in the following limited circumstances only. They are not payable if a meal is provided or the employee could return home for a meal.

Overtime If an employee works at least one hour of overtime after their rostered time of finishing, and they have not had 24 hours notice that they are required to work overtime, they are entitled to a meal allowance of $14.20.

If the above overtime exceeds four hours, the employee is entitled to a further meal allowance of $12.85.

Special Clothing > Protective Clothing If an employee performs work where they are likely to get dirty or wet and the employee will requires protective clothing, the employer must either provide such clothing or pay for its purchase and renewal. The employer must also pay any laundering costs. This allowance will usually apply to employees who work as butchers or in the deli department. > Uniform If an employee is required to wear a special uniform, the employer must either supply that uniform or pay for its purchase. “Uniform” generally means a specific item of clothing with the company logo on it.

In such circumstances the employee must also be given a laundering allowance: A full time employee is entitled to a laundering allowance of $6.25 per week and a part time employee is entitled to $1.25 per shift.

An employer may provide laundering facilities as an alternative to paying a laundering allowance.

A “special uniform” does not include standard clothing non monogrammed clothing such as black pants, black shoes, and white/blue shirt. An employer is entitled to set a dress standard for employees, which requires a neat and tidy appearance.

Travel and Transport > Excess Fares Where an employee is required to move from one shop to another for any time period up to 3 weeks, all additional fares shall be reimbursed by the employer.

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> Travelling Time If an employee is required to work away from the store, the employee must be paid for all time spent travelling to and from the other location. If leaving from home, payment must be made for all time spent travelling to and from the other location, which is in excess of how long it would normally take them to get to work.

The rate of pay is the ordinary hourly rate. On Sunday and holidays it is time and a half. > Transport Allowance Where an employee uses their own motor vehicle for work purposes, the employee shall be paid an allowance of at least 78 cents per kilometre. > Transport Reimbursement If an employee starts work before 7am, or finishes work after 10pm, and their regular means of transport is not available and they are unable to arrange alternative transport, the employer must pay for a taxi to or from the employee’s home or arrange for other proper transportation.

This does not apply to night fill staff. > Cold Work Disability Allowance If an Employee is principally employed on any day to enter a cold chamber and to stock and refilling a refrigerator, dairy case or freezer cabinet shall be paid 1.3% of the standard rate while they perform such work.

Employees required to work at temperatures below 0oc shall be paid an allowance for each hour of 2% of the standard rate in addition to the above allowance.

The standard rate means the rate of pay payable to a Retail Employee Level 4. > First Aid Allowance An employee who holds an appropriate first aid qualification and is appointed by the employer to perform first aid duty will be paid an extra of 1.3% of the standard rate each week.

The standard rate means the rate of pay payable to a Retail Employee Level 4. > Recall Allowance An employee recalled to work for any reason, before or after completing their normal roster or on a day in which they did not work, will be paid at the appropriate rate for all hours worked with a minimum of three hours on each occasion.

The time worked will be calculated from the time the employee leaves home until the time they return home. > Liquor Licence An employee who holds a liquor licence on behalf of the store will be paid an extra 3.1% of the standard rate per week. This payment will depend on the local licence that the store is required to hold. The standard rate means the rate of pay payable to a Retail Employee Level.

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> Higher Duties Employees engaged for more than two hours during one day or shift on duties carrying a higher rate than their ordinary classification are to be paid the higher rate for such day or shift.

If the employee is engaged for two hours or less during one day or shift, the employee is to be paid the higher rate for the time worked only.

Ordinary Hours of Work and Rosters Spread of Hours The spread of hours is: Monday – Friday: 7.00am to 9.00pm Saturday:

7.00am to 6.00pm

Sunday:

9.00am to 6.00pm

In the case of retailers whose trading hours extend beyond 9:00 pm Monday to Friday or 6:00 pm on Saturday or Sunday, the finishing time for ordinary hours on all days of the week shall be 11:00 pm.

The maximum number of hours an employee can work is: • 9 hours on any day per week • 11 hours on one day per week Rosters Each store may adopt a method of best arranging rosters and this may be done not more than once a year by mutual agreement between employers and employees.

A full time roster may be arranged on the basis of 38 hours in a week, 76 hours in two consecutive weeks, 114 hours in three consecutive weeks or 152 hours in four consecutive weeks.

The 38 hour week may be arranged to provide for shorter working days, RDOs and fixed days off.

Rostered days off may be arranged between the employer and employee.

Employees regularly working Sundays An employee who regularly works Sundays must be rostered so as to have three consecutive days off each four weeks with the consecutive days off to include Saturday and Sunday. An alternative arrangement can be made with consent of both the employer and employee. The arrangement must be in writing and cannot be a condition of employment.

The employee can terminate the agreement by giving 4 weeks notice.

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Notifying about rosters Roster Notification must be on the notice board showing the hours to be worked each week, the days to be worked and starting and finishing times.

Overtime and Penalties An employer may require a full time or part time employee to work reasonable overtime.

An employee may refuse if it would result in them working hours which are unreasonable having regard to: • any risk to employee health and safety • employee’s personal circumstances including any family responsibilities • the needs of the workplace or enterprise • the notice (if any) given by the employer of the overtime and by the employee of their intention to refuse it • any other relevant matter What is overtime?

Overtime penalties apply as follows; First 3 hours of overtime =

time and a half

After 3 hours

double time

=

The rate of overtime on a Sunday is double time, and on a public holiday is double time and a half.

For full time employees, overtime is payable when an employee works beyond ordinary hours, that is: • more than 38 hours in one week • more than 76 hours in two consecutive weeks • more than 114 hours in three consecutive weeks • more than 152 hours in four consecutive weeks Overtime for part time employees is payable for all time worked in excess of hours, as agreed in the original employment contract. A part time employee’s hours can be varied but the variation must be in writing.

Overtime is payable beyond the spread of ordinary hours for full time and part time employees.

Where an employee qualifies for the overtime penalty and is also working outside the spread of ordinary hours they will receive only the overtime penalty.

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Casual employees are not entitled to overtime payment for any of their work.

Overtime payments are not payable to casual employees for any work performed outside ordinary hours.

Superannuation is not payable on overtime penalties.

Time off in Lieu of Overtime An employee may elect to receive paid time off in lieu of overtime. This means that the employee would not receive any payment for the overtime worked, but would accrue paid time off as follows: • Where the penalty is time and a half: 1.5 hours- time in lieu for every hour worked • Where the penalty is double time: 2 hours- time in lieu for every hour worked Time off in lieu must be taken at a mutually convenient time, or may be added to the employee’s annual leave by agreement between the employer and the employee.

Shift Work Shelf Fillers (Night fill) employees’ v Shift workers > Shelf Fillers (Night Fill) Employee: A night fill employee is an employee who may be rostered to work to stack shelves during the day or after the store has closed. Sometimes the employee stacks shelves partly when the store is open and partly after the store has closed. However provided that they complete their shift on the same day on which they started their shift, within the span of hours when the store is open for trading, then they will not be classified as a shift worker and will only be liable for the penalties applicable under the General Retail Award. > Shift Worker A shift worker is an employee who begins their shift at or after 6:00pm on one day and ends before 5:00am on the following day. A shift worker is subject to higher penalties ranging from an additional 130% for full and part time employees (an extra 155% for casual employees) for work performed from midnight Saturday to midnight Friday to an extra 150% for full and part time employees (extra 175% for casual employees) for Sunday work, and an extra 200% for full and part time employees (225% for casual employees) for work performed on Sunday.

Shift work means a shift that starts between the hours of 6:00pm one day and 5:00am the following day, including shifts commencing at 6:00pm.

It does not include a shift that starts and finishes on the same day within the span of ordinary hours. An employee who works a shift outside ordinary hours, which begins and ends on the same day will be regarded as a shift worker and will be entitled to penalties.

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A night filler who starts work at 6:00pm and works until the store closes, for example, at 11:00pm is not a shift worker. Provided they complete their shift on the same day on which they started their shift, within the span of hours when the store is open for trading, then they will not be classified as a shift worker. If, for example the store closes at 9:00pm and the employee works 6:00pm until 11:00pm, the employee is classified as a shift worker. > Rates of Pay between midnight Sunday and midnight Friday: additional 130% (155% for casual employees) on a Saturday: additional 150% (175% for casual employees) on a Sunday:

additional 200% (225% for casual employees)

Where an employee elects to work on a public holiday the employee will be paid under the public holiday rates.

Where a shift falls partly on a public holiday and the shift commences on the public holiday the shift will be regarded as a public holiday shift.

If the employee elects not to work on a public holiday the shift, the employee will be entitled to be absent without loss of pay.

Where it is agreed between an employer and the majority of employees that another shift may be substituted for the shift which starts on the holiday as the holiday shift then the public holiday clause will apply to the day that is substituted. > Rest breaks and meal breaks All rest breaks and meal breaks taken by shift workers are paid breaks and form part of the hours worked. > Rosters Shiftwork rosters cannot be varied so as to avoid the provision of the public holiday entitlements.

Ordinary Pay and Penalties Ordinary pay > Full time and part time employees: ordinary hourly rate The ordinary hourly rate of pay is the hourly amount for a full time or part time adult employee as applies to their relevant classification.

Employees receive the ordinary hourly rate for all work performed within the spread of hours to a maximum of 38 hours per week. They may also receive some additional penalties for weekend and evening work.

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> Casual employees: casual hourly rate The casual hourly rate is the full time ordinary hourly rate plus a loading of 25%. As stated earlier, if the award under which the employee was previously employed had a penalty of less than 25% there was an incremental increase over 5 years to reach the current 25%. > Junior Employees After 1 July 2015 junior employees now receive the following percentage of the adult rate: Age

Percentage

20 years of age, employed by the employer for more than 6 months

100%

20 years of age, employed by the employer for 6 months or less

90%

19 years

80%

18 years

70%

17 years

60%

16 years

50%

Under 16 years of age

45%

Penalty Payments 1. Full time and part time employees > Evening work After 6pm on Monday – Friday employees are paid at the ordinary hourly rate plus a 25% loading for work performed during ordinary hours. This penalty does not apply to casuals. > Saturday work Between 7 am and 6pm on Saturday employees are paid at the ordinary hourly rate plus a 25% loading. > Sunday work Work on Sunday is paid at the ordinary hourly rate plus a 100% loading (double time).

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2. Casual employees > Evening Work No additional payment. > Saturday work The ordinary casual hourly rate plus an additional 10% for work performed up to 6pm. > Sunday work Work on Sunday is paid at the ordinary hourly rate plus a 100% loading (double time).

[There is no casual loading].

3. Public Holidays > Public Holiday Entitlement Full time and part time employees are entitled to receive the following days as holidays without loss of pay, if they would normally have been rostered on that day. > Holiday on a Rostered day off If the holiday falls on a rostered day off, the employee does not receive the benefit of the public holiday. > Substitute Holidays Where Christmas, Boxing Day or New Years day falls on a Saturday or Sunday, the public holiday shall be observed on the following weekday.

The employer and employees may agree to substitute and public holiday for another day. > Work on a Public Holiday > Full time and part time employees Work performed on a public holiday is paid at the ordinary hourly rate plus a 150% loading (double time and a half). >C asual Employees Work performed during the spread of hours on a public holiday is paid at the full time ordinary hourly rate plus a 175% loading.

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4. Meal and Rest Breaks Employees are entitled to the following meal and rest breaks: Hours Worked Rest Break (paid) Meal Break (unpaid) Except for shift workers Work less than 4 hours No rest break No meal break Work 4 hours or more but no One 10 minute rest break No meal break more than 5 hours Work 5 hours or more but less One 10 minute rest break One meal break of at least 30 than 7 hours minutes but not more than 60 minutes.

Work 7 hours or more but less Two 10 minute rest breaks, with One meal break of at least 30 minutes but not more than 60 than 10 hours one taken in the first half of the work hours and the second minutes. taken in the second half of the work hours.

Work 10 hours or more Two 10 minute rest breaks, with Two meal breaks each of at least 30 minutes but not more one taken in the first half of the work hours and the second than 60 minutes. taken in the second half of the work hours.

An employee cannot be required to take a rest break or meal break within 1 hour of commencing or ceasing of work. An employee cannot be required to take a rest break(s) combined with a meal break.

All rest and meal breaks form part of the roster and are subject to roster provisions. > Breaks between Work Periods Under the General Retail Industry Award (GRA) there is no provision for split shifts.

If an employee works on a particular day for a period of time that employee cannot work a second shift on that day.

If an employee completes a rostered shift on a particular day there must be a 12 hour break between the finishing time of that shift and the commencement of any new shift.

If an employee commences a shift prior to the completion of the 12 hour break then the employee will be entitled to be paid at double the rate of pay that they would be entitled to until such time as they are released from work for a period of 12 hours.

By agreement an employer and an employer may agree to the period of 12 hours being reduced to not less than 10 hours break.

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5. Leave There are various form of leave prescribed in the GRA and they are the same as contained in the National Employment Standards.

In the GRA the annual leave entitlement accrues from the commencement of employment also includes Annual leave loading which is 17.5%, payable in respect of any annual leave taken and loading must also be paid on termination.

6. Wage rates Wage rates are usually increased annually, although that is subject to a decision of the Fair Work Commission, a decision which is made after careful consideration of all issues that might be impacting on the economy. MGA publishes a wage table every year.

4. Enterprise Agreements An enterprise bargaining Agreement (EBA) is a collective agreement made between an employer and a group of employees. An EBA allows the parties to determine what they want in an agreement for their workplace and it may contain terms that are different to those in the award that would normally be the instrument to govern their employment.

Any agreement must contain a consultative clause and a dispute resolution clause. It must also contain conditions that are no less than the National Employment Standards. The employer and employee can then determine other matters such as the wages that will be paid, the hours of work, when to take meal breaks and overtime provisions. However, any agreement must meet the “better off overall test”. That is the employees must have a set of terms and conditions that puts them in a better position than they would be in if they were employed under the award.

For example an employee’s hourly rate cannot be less than he or she would receive under the GRA. It is often the case that an employer will want to pay less penalty rates on Sunday than the 100% payable under the GRA. This is understandable but in order to achieve a lower penalty rate then there must be a higher hourly rate in order to compensate for the penalty reduction and therefore leave the employees “better off.”

Frequently asked questions about existing and future Agreements Q. “I have an agreement that was made some time ago can I continue to use it after its expiry date’?

A.: “Yes you can continue to use the agreement but you need to ensure that you check your base rate for all age groups and classifications against the General Retail Industry Award. Your agreement rates must be no less than the award rates.”

Q. “What about if my penalty rates vary from the General Retail Industry Award? ” A. “Your penalty rates can remain the same as contained in your agreement and so can other terms and conditions in your agreement as long as they do not breach the National Employment Standards.”

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Q. ”Does that mean my agreement will just keep continuing for as long as I want it to”?

A. “Not necessarily. Once your agreement is past its expiry date it will continue until it is terminated. That means an employee or a Union could make an application to terminate an expired agreement by lodging an application in the Fair Work Commission. It is unlikely that the agreement would continue.”

Q. “If I want to make a new agreement what would I be required to do?”

A. “You would need to make sure that the terms and conditions of your new agreement ensured that your employees were ‘better off overall’ than under the general retail industry Award.

Q. If I take over a new store can I use my current agreement in that store?”

A. Only if the coverage clause of your agreement covers your company and not specifically one store and that company was the business that was going to operate the new one” Q. “If I purchase a store will I be able to continue to use the agreement that applies to that store for the employees?”

A. “Only for the employees who are already employed in that store . Any new employees employed after you have taken over the store will be employed under the terms and conditions of the General Retail Industry Award.

5. Managing Employees Performance Management We always want to get the best out of our employees and ensure they are completing their tasks to the satisfactory standard expected of someone in their position. Unfortunately, managing your employees is one of the toughest tasks associated with operating a business.

Already, the industrial landscape is difficult with rising wages, a rigid Award system and increasing competition. Getting the performance management process right will allow you to address issues with your staff immediately and effectively. On the opposite end, if your procedures are flawed or you allow unacceptable issues to persist, this can result in significant costs to your business.

Problematic employers fall into one of two categories which happen to be on either side of the performance management spectrum: 1. Some allow the performance issues of their employees to persist and become ongoing without any intervention. These employers reach a breaking point where they finally become exhausted with the employee’s performance and want them out of the business. But by this stage, the employee is unaware of the issue and there have been no documented discussions or warnings given.

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2. Some employers are heavy handed at the first site of poor performance and prefer to immediately issue warnings or termination without first discussing the issue with the employee and allowing them a chance to rectify their behavior.

In both scenarios, the risk of receiving an unfair dismissal application is high.

The The best option is to provide support to employers by highlighting best practice methods for the performance management of employees in a timely and efficient manner.

The aim is to ensure that management and employees work together to facilitate better performance outcomes, grounded by a workplace culture which facilitates support and communication. This will consequently lead to happier workplace with greater productivity levels.

The purpose of the performance management process should never be to facilitate the termination of an employee, or to “performance manage” an employee out of the business. Rather, the process should seek to identify and resolve any performance concerns.

After a proper induction process wherein the employee has been given guidance on how to do the job, you may find you need to give the employee further directions of how you want work performed. Sometimes this approach works out well, but sometimes the employee is simply not suited to your workplace and further action needs to be taken. It is far easier to deal with a potential problem immediately rather than letting the matter fester and become unmanageable. Importantly, it is essential that a paper trail is kept of discussions and meetings relating to the identified issues.

We need strategies to properly assist in dealing with performance and conduct issues as they arise, and ensure your employees are performing their duties to the proper standard expected.

Recruitment Start off in the right way. Selecting new employees is never easy, but it is worth adopting a cautious approach before making an offer of employment. So try to get the right person for the job from the outset. It is therefore recommended that you take the following steps: 1. Take care during an interview to ensure that you do not make any discriminatory remarks. Any questions should be tailored towards the duties or roles associated with the position.

2. Make sure that you go through a proper process of checking a potential employee’s referees. Only referees authorised by the applicant are to be contacted, and they should only be asked questions directly related to the selection criteria.

3. If you need to do a police check (e.g. if the job is one that involves managerial matters or money handling responsibilities), then make the position subject to the outcome of the police report.

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4. Give the employee a letter of offer stating the award or agreement that applies to the employment. Specifying terms and conditions, including wages, in writing from the outset will go a long way towards avoiding a wage claim in the future.

5. Don’t do “sweetheart deals” where an employee is given wages that don’t quite cover matters such as overtime. If there is any variation from the award or agreement, make sure that you pay the employee correctly from the outset. If you have any doubts, contact MGA. 6. You must give any new employee a copy of the Fair Work Information Statement.

7. Avoid salary arrangements – if you are covered by the General Retail Industry Award, salary arrangements are not expressly allowed and therefore it is recommended that you pay employees in accordance with the applicable penalty rates and loadings.

Discrimination Employers must ensure that the selection process is devoid of any discrimination. Even prospective applicants are protected by discrimination laws. Applicants should be selected on the basis of skill, ability, qualifications and experience relevant to the inherent duties and requirements of the role, and not asked questions that imply discriminatory decisionmaking e.g. those based on age, race, sex, marital status etc.

Do not write job advertisements or ask questions which overtly state or imply that the job is restricted to people with specific attributes e.g. age or gender.

Medical condition An important part of hiring a new worker is ensuring that they are able to perform the inherent requirements of the job for which they have applied.

A common issue is the disclosure of medical conditions at the recruitment process. There is no obligation on an applicant to disclose a medical condition that may affect their ability to perform the job without adjustments. Further, employers need to ensure they do not fall foul of discriminatory laws by basing their decision not to hire a prospective employee on the basis of his/her medical condition The pre-existing medical condition or injury must directly relate to the ability of the employee to perform the inherent requirements of the position. Even if there is such an injury, if reasonable adjustments can be made to accommodate the employee, then a decision not to hire an employee on the basis of the illness or injury may still breach discrimination laws if the decision was in some way based on the disclosure of the condition.

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Any physical tests should relate strictly to the candidate’s ability to carry out the duties associated with the job e.g. lifting a certain weight. Asking generic health questions, or sourcing for information pertaining to any medical conditions even if they have no connection or impact on the person’s ability to perform the role, must be avoided.

It is strongly recommended for prospective employees to be provided a clear outline or description of the duties contained within the job, before asking if they are aware of any pre-existing injury or illness that might affect the performance of tasks and duties.

INDUCTION From the outset Once you have selected the best candidate to perform the specific duties associated with the role, the next step is to discuss the store’s policies and procedures. The induction stage ensures the new employee receives all information about how to carry out their work, and the level of performance and workplace conduct expected of them.

Policies and procedures must be uniform across the board to ensure consistency in understanding and enforcement. Take the time to go through each policy and ensure they understand the contents and sign all documents as well as providing a copy for their records. If training or induction programmes are mandatory for all new employees (e.g. training in register procedures, or occupational health and safety processes), then you should have each employee sign a record of attendance.

It is also advisable to have your policies on display – this could be on the noticeboard or in the copy of the store handbook located in the tea room. These policies should be reiterated and referred to at staff meetings, where relevant, to ensure employees have adequate knowledge and understanding of the appropriate level of performance and behaviour expected.

If for whatever reason the employee breaches the policy at a later stage, disciplinary meetings and warning letters can be issued based on the employee being previously aware of the correct behaviour/procedures expected.

Probation Period A favourite phrase of employers is ‘probation period’. There is nothing in the Fair Work Act which refers to a ‘probation period’. Instead the concept essentially relates to the point in time wherein an employee becomes eligible to access unfair dismissal laws.

For a business of 14 employees of less (including casuals employed on a regular and systematic basis), the probation period for an employee can be up to 12 months. For business with 15 or more employees, the probation period is up to 6 months. Depending

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on the size of your business, once an employee’s service reaches the relevant period, s/he will be protected by unfair dismissal laws.

The period of service includes any period of paid leave, which includes any period in which the employee is absent from work receiving workers’ compensation.

Be aware that if you acquired a business with transferring employees, and you did not provide a letter to each transferring employee before the sale date stating that you would not be recognising their previous service, then any service with the previous owner will automatically count as service with you upon transfer.

The probation period is an excellent means of assessing an employee’s suitability to the role you have placed them in. This is not to say that records should not be kept of discussions, verbal cautions and formal meetings undertaken during the probation period.

Any issues raised with employees should always be documented because it is never certain as to what may happen down the track.

Do not hesitate to act once you detect there is a problem with an employee’s performance.

If you allow the problem to continue without attempting to remedy it then it could, and probably will, become more problematic. Once the initial period of employment has been completed and no action has been taken, then the termination process is more difficult.

Monitor and Provide Feedback Do not assume that a new employee will fall into place and immediately meet expectations.

It is appropriate to provide feedback to an employee if there are any difficulties with performance during the first few months of work. If for example an employee is not able to use the register correctly then give some further training and then if the employee is still unsuitable you may have to terminate the employment. If you do this within the initial period of employment before the employee has access to unfair dismissal laws, then the employee is not able to take an action against you for unfair dismissal.

If you do terminate an employee’s employment during the “initial employment period” you should provide a reason. If the reason is “not suited to the work” or “unsatisfactory work performance” – then say so. Even though the employee is terminated before being able to access unfair dismissal laws, they must still be given a reason for their termination.

If an employee’s work performance is unsatisfactory then deal with the problem. If there is friction in the workplace because employees are not cooperating with each other, then address the conflict. Later in this booklet we will go into greater depth with addressing performance and conflict issues. Ultimately, acting promptly, being patient and a good listener when problems arise will help an employer to overcome difficult issues.

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Deciding on the role If you are unsure as to whether you want to commit making an employee permanent, consider advertising for a casual position during which time you can assess the employee’s suitability and subsequently offer a role to go permanent.

On the other hand, there are circumstances where you have a well performing casual staff member, and you think they would be a great choice to place into a permanent role.

In most cases, this can prove to be a successful move. Unfortunately though, in some situations, the employee turns out to be unreliable, but because s/he has reached the minimum period of service to be protected from unfair dismissal laws, your only option is to proceed down the performance management path. Deciding to terminate their employment, or unilaterally switching them back to casual is against the law.

In-house promotions In the event that you have elected to promote an existing employee into a new role, MGA recommends that you place that person on a fixed term contract for a short period (any time less than 6 months) to give you an opportunity to assess their performance in their new role. The benefit of this approach is that with a new employee, employed from outside of the business, you would be able to rely upon the 6 month ‘probationary period’. However, with an existing employee, the probationary period does not occur and if the employee is therefore unsuitable for the role, you cannot demote them back to their original role.

A fixed term contract gives you the opportunity to review the employee’s performance at the end of the contract and then either offer them a permanent position in their new role, or return them to their previous role prior to the promotion.

Casual Employees There are many misconceptions about casual employees. Unless the employee is irregularly and unsystematically employed and with no reasonable expectation of ongoing employment, if s/he reaches the minimum employment period as discussed above, they will have access to unfair dismissal laws if their employment is terminated.

Discrimination and adverse action – still prohibited during the probation period Despite there being a minimum period of employment which an employee has to reach before they can access unfair dismissal laws, a dismissed employee, whatever their period of service, can still challenge the dismissal on grounds that it is in breach of antidiscrimination or general protection laws.

We urge you to contact MGA when considering termination because if you decide to dismiss an employee within their ‘probationary period’, you should still ensure you are in a position to prove the reason for dismissal and show that it is a lawful reason and not

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based on an employee’s workplace right or on a discriminatory ground (e.g. because the employee informed you that s/he is pregnant).

Change of Duties When an employee’s duties and conditions fundamentally change, employers should confirm the new arrangements immediately with a written document or contract to reflect the altered nature, and give adequate retraining and resources to cope with them. This for instance occurs where an employee requests (and it is subsequently approved) to have their hours reduced or their status downgraded. Similarly if an employee is promoted, this should be confirmed in a letter of appointment

PERFORMANCE MANAGEMENT What happens when things go wrong?

Despite your best endeavours an employee’s performance sometimes does not reach the standard that you require. It is important to address any performance issues promptly so as to resolve any further complications.

What is Performance Management?

Performance management is essentially a process undertaken to identify and redress issues relating to the performance or conduct of employees, and involves both the employer and employee working together to eliminate the issue. The ultimate aim is to ensure that the worker’s behaviour and performance is consistent with the company’s objectives, and aligns with the duties and responsibilities associated with the position.

The essence of performance management is working with the employee, not against them. Employees are often unaware they are not performing well and so are unlikely to change their performance if the issue is not raised with them from the outset. Therefore, by bringing issues to the employee’s attention in an open and non-intimidating environment, and offering retraining and support, this will facilitate a quick turnaround in their performance to the level required.

Performance management does not automatically mean issuing a warning. The idea behind the process is bringing the issue to the attention of the employee, advising them of the damage/negative effects it has on the business, and discussing strategies for overcoming these issues. Depending on the circumstances (e.g. register failing to balance), it would be prudent to retrain the employee and document the fact that this has occurred.

Why Manage Performance?

Performance management is a low-risk, high-reward practice. Given that most performance management systems require managers and employees to commit to a development plan, employees experience real personal development and become more engaged with the

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organisation. They feel part of the organisation and start to understand that they and the organisation are interdependent. The organisation is developing the employee and the employee is working towards developing the organisation by achieving its goals.

The most important thing you need to remember is not to jump straight to disciplinary action like dismissal. Instead, you need to give the employee an opportunity to improve their performance. This entails counselling the employee to advise them that their performance is not up to scratch and to set out a plan for improvement.

The success of the performance management process is contingent on having welltrained management and a positive culture. Well-trained managers with the willingness and courage to manage the issue are better able to identify and solve issues of underperformance before it has serious effects on the productivity and performance of the entire workplace. In addition, a business which facilitate, encourages and promotes ongoing feedback and discussion about performance issues in open and supportive environments will limit instances of employees feeling pressured, stressed or bullied when these issues are raised with them at first instance.

Performance management is a means to work alongside the employee and motivating them to perform at their best. Failing to identify or intervene when performance issues come to light `can lead to unproductive outcomes which have the potential to affect the entire workplace. Further, the longer that poor performance is allowed to continue, the more difficult a satisfactory resolution becomes, and the more the overall credibility of the system may suffer.

When to use performance management?

Performance management can be used at any time but is most often relied upon where there are signs of underperformance. In a retail environment where there are multiple positions, a raft of duties, and a range of personalities, it is inevitable that at some stage, one or more employees will not meet company expectations. The key is to discover the root of the issue which will only arise by following the necessary procedures associated with performance management.

In general, some of the common reasons which form the basis of an employee’s poor performance include: • The employee does not understand or is unaware of the standards or goals expected of them, or of the relevant workplace policies and procedures in place • There are no workplace policies or procedures in place, or job descriptions and perform targets have not been set • interpersonal differences • The employee does not have the necessary capabilities, skill or knowledge to carry out the duties associated with their role

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• There is no counselling or feedback on the employee’s performance, and therefore they are not aware that they are in fact failing to satisfactorily perform their role • Lack of personal motivation, or low staff morale / poor workplace culture • Personal issues unrelated to the work environment or job that is affecting their commitment and performance e.g. health issues, family problems • Cultural differences / misunderstandings • Workplace bullying or harassment Underperformance should be dealt with promptly and appropriately by an employer, as employees are unlikely to suddenly improve their performance on their own accord. Best practice employers understand that issues which are not addressed promptly also have the potential to become more serious over time. This can have a negative effect on the business as a whole as it can affect the productivity and performance of the entire workplace.

How to performance manage?

The ability to perform manage comes from analysing the workplace and being acutely aware of the performance and capabilities of your employees. The crux of the process is to consult the employees in a friendly atmosphere, and address issues of concern from a workplace perspective. In any event, the process should: • relate to the job performance and the objectives of the workplace • relate to matters that are within the ambit of the work capable of being done by the employee, e.g. there is no point in criticising an employee for poorly performing a task outside their own experience • carefully and precisely distinguish between excellent, satisfactory and unsatisfactory performance • be related to outcomes that are achievable and can be documented, if appropriate • be capable of being put into a form that can be communicated back to an employee Alignment To effectively performance manage employees, there should be an alignment between an organisation’s objectives and the performance management being undertaken.

This involves giving careful consideration to the overall aim of the workplace and the departments contained with it. Ask yourself questions: -

what kind of workplace do you want?

-

What do you want to achieve?

-

What culture do you want to promote?

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Be objective and set clear performance expectations. Clearly defining the actions and behaviours needed to perform the duties of a role is often as important as defining the required output. Performance expectations should be specific and achievable, and focus on what is observable.

Transparency The processes and steps undertaken need to be transparent in relation to the measurement of performance. This essentially means that: • each work level should ideally have documented performance criteria, e.g. a junior employee’s performance criteria are likely to be fundamentally different to a senior employee (in other words, the criteria will be different, but not the standard) • there should be a genuine commitment to reward excellence and discipline unsatisfactory or substandard work • the process should be unemotional and based on objective criteria Fairness The process needs to be applied fairly. This should be felt not only by the employee who is the subject of the performance management process, but is understood across the workplace. This certainly involves consideration of an employee’s responses, allowing sufficient time for an improvement in performance, and setting realistic objectives.

YOUR STORE AT A GLANCE Personalities in the workplace Any workplace today will have individuals with different personalities, opinions, and varying attitudes, and they may come from culturally diverse backgrounds. Therefore, it is prudent to be to be aware of the varying types of personality traits and be prepared to handle them when a situation or reaction arises.

Here are some of the personality traits that may be seen in employees that give rise to conflict, and suggested methods for dealing with them: Aggressive

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Will become defensive and often reacts adversely to authority.

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• Stand your ground • Recognise what they are saying, but don’t feel the need to accept it • Seek an ‘honourable’ conclusion • Re-direct and aim for the bottom line

Complaining

Domineering

The Gossip

Always “whinges” and will react • Listen negatively to any suggestions.

•P repare to interrupt – get specific • Acknowledge their gripes, but don’t indulge them • Use limiting responses • Move to problem solving • Recognise their position but Will have difficulty reaffirm the structure of the acknowledging any form of organisation authority and be reluctant to listen to other opinions.

• Engage the employee in selfEnjoys being a “fountain of reflection knowledge”. Likes to know everything that is going on and • Encourage friendliness and openness but reiterate the wants to tell tales to others. need for professionalism

The Ultimate Critic

A person who is critical of any new ideas and is constantly negative.

• Show the future • Get them in problem solving mode – pros and cons

Know all

Is knowledgeable about everything and is often unable to take directions or accept them.

• Be prepared – know your stuff • Don’t resent • Present views politely • Acknowledge his/her competence • Encourage them to share their expertise • Reaffirm that improvement in performance will further enhance their overall skills

Insubordinate

Insubordinate Ignores instructions, arrives late, always has excuses, does not like direction, constantly challenges management.

• Don’t give them time to vent • Get their attention – interrupt • Show your concerns, but don’t tell them to calm down • Take control but avoid setting the person off – say ‘Let’s take a moment to consider this’

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Awareness of these personality traits and training managers to handle performance management processes properly is a significant step towards resolving any workplace issues immediately and effectively without any further repercussions.

Power and Authority Power and authority have long been seen as important status symbols. When they are used correctly and sensibly they are extremely effective. However, if these tools are handed to the wrong people who do not know how to handle their power sensibly, then this can create a volatile situation. Serious problems can occur in any system where authority is misused; not the least in the workplace. > Misuse of Power The misuse of power is probably one of the most common causes of any conflict.

Over centuries there have been many leaders who have fought battles to obtain and retain power. In itself there is nothing wrong with having power. There have been many great people who have used power for the common good and had many great achievements. Therefore, the crucial element to leadership success, and an inroad to ensuring a harmonious workplace, is the correct use of power. > Exertion of power – needs guidance Managers who are given authority need to be trained on how they should relate to their subordinates. This does not involve removing their power for fear of misuse, but training them properly and overseeing that they are handling their power appropriately.

Being “bossy” or “aggressive” towards employees will usually only result in resentment and thus a negative response. Employees do not relate well to their supervisor directing them in a dictatorial manner. The end result usually ends in a complaint, and ultimately, conflict. > Need for Cooperation Where there is a lack of willingness to work together to achieve a common goal then levels of achievement will inevitably be low. Unless each person contributes to the success of a project then there will be a negative result.

Synergy is the “buzz” word which best encapsulates this point. The workplace can be a healthy mix of individuals from different generations and cultural backgrounds, and so cooperation is essential. There needs to be a common cause that binds people together.

If a nation, a business group, a football team, or a family, works together towards achieving common goals for the common good, with a sense of pride and fairness, then it is likely that there will be positive outcomes. For example, if there is a common goal to achieve fantastic customer service, then each staff member can help one another to reach this target.

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> Setting a good example Motivation can be healthily instilled by the person with authority. Setting a positive example will influence employees to work happily and productively, to ultimately achieve a successful workplace. It is important to remember that the person who is recognised as being the holder of power, can indirectly influence those around through his/her attitude, actions, demeanour etc. By being aggressive and intolerable, a boss is not setting the right image of influencing his/her employees to be calm and respectful of one another. > Beyond role power?

There is more than just having the power of authority. Certainly a boss has power over staff, and this type of power is the most widely recognised. But be mindful that power can also come from the skills you possess and the quality of your results – employees will inevitably look up to and respect someone who is renowned for achieving results and being an achiever. There is more benefit with having employees conduct their duties out of respect for you, as opposed to out of fear.

In addition, there is power which comes from the relationships you have with others.

That is, people will do things for you based on the relationship you have. Consequently, building a good rapport with people will allow work processes to operate smoothly.

Being approachable and flexible with your work arrangements will go a long way to ensuring a minimisation in conflict.

Conflict Many issues which become the subject of performance management arise primarily from workplace conflict – this could be a conflict between a subordinate and their supervisor as to the level of work expected, or a conflict as to the understanding of appropriate and relevant policies and procedures.

Conflict usually involves some level of misunderstanding and it is important to try and get to the real cause of the conflict as it may be then possible to sort out the problem very early before it escalates further.

The true disagreement may be significantly different from the perceived disagreement and therefore it is essential to find out the root of the problem so as to manage the needs of the parties. If the perceived or apparent disagreement is based on a misunderstanding, then only by discussing the matter can this be revealed and the matter effectively resolved.

If a misunderstanding continues, then problems can’t be solved and the true needs of the parties won’t be addressed.

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Signals that indicate there is conflict or problems Although we like to think that we have a happy and harmonious workplace – and in some circumstances that may in fact be the case – conflict is inevitable and you should never turn a blind eye to the warning signs.

Some overt signals which can alert you to a potential conflict are: • Regular absences in a specific area • Change in interest level – work deterioration • Low standard of productivity • Gossip amongst staff – could be social media activity • Regular resignations for no apparent reason • Negativity towards work • Lack of communication amongst staff or with senior staff • Complaints about senior staff Workplace conflict A workplace is the ultimate setting for conflict; however, an effective workplace is one which has procedures in place to swiftly resolve conflict to the benefit of all parties involved. Some of the most common forms of workplace conflict include: • A clash of ideas or interests – often employees disagree between themselves or with a supervisor about how a task should be performed. An employee may be told to do something that he/she does not like or it’s outside their particular interests or abilities.

• An employee likes to perform a task in a particular way and is directed otherwise.

• An employee has certain attitudes or values that determine his/her behavior and they are incompatible with those of another employee.

• There is general disharmony because of personality differences and there is constant bickering between two or more employees.

• Direct and constant opposition between parties.

The workplace is one of the most volatile areas of conflict – here are some examples of workplace conflict: • A group of employees are asked to discuss the best way to deal with the promotion of a new product and each one makes suggestions. One member of the team is particularly adamant that a particular promotion method should be adopted. He has some support but several team members have other ideas and are opposed to it.

• A supervisor gives an order and finds the job is done poorly by the employee and then criticises the employee’s abilities. The criticism is taken personally and escalates into a stressful situation for the affected individual.

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• Employees are simply not getting along because they dislike each other and the bitterness between them grows over a period of time.

• An employee is being aggressive towards another employee and this becomes a source of bullying which the bullied employee cannot tolerate.

• Being openly critical of another employee to others - making the employee feel embarrassed and isolated, this leads to employees taking sides and becoming disruptive. For example, an employee does not believe his/her fellow staff member’s work ethic and productivity is up to scratch, and mentions it to another colleague who repeats the comments publicly. Both the employee who made the initial comment, and the employee who is the subject of the comments, find it extremely uncomfortable to work together again.

Many of these examples are best resolved through counselling meetings/discussions.

Qualities to exhibit during counselling sessions As has been explained above, there is no use berating the employee for poor performance, and turning the meeting into one-way traffic. The following are suggested abilities that will facilitate the employee to provide their version, as well as working together to reach a solution: Patience

Tolerance

Strength

Perseverance

• This skill involves not allowing yourself to become annoyed or upset if things don’t go according to plan, or the other party appears to be stubborn.

• Once you become angry, this can cloud your judgment and affect your ability to think rationally, thus compromising a resolution of the dispute.

• You need to accept that there will be different views between yourself and others.

• Others will not see things from your perspective and therefore to reach a resolution, you may need to take the other party’s beliefs and opinions into account.

• Be patient to allow others to express their side of the story. After all, the conflict may be the result of a misunderstanding which will only be clarified if every party to the conflict can share their opinion.

• After hearing all sides, there may be a compromise that you can reach.

• You need to be strong but willing to recognise the point of view of others.

• Some difficult situations need a person to exercise strength and determination but in a restrained way.

• A good leader is decisive, but each decision is made in a careful and measured way.

• You need to be able to continue to strive for a satisfactory outcome despite any setbacks.

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Placidity Diplomacy

• The ability to keep calm and unruffled when disturbances arise, and refraining from demonstrating any signs of anger if the situation gets out of control.

• A person who can be diplomatic is acutely aware of managing different temperaments and is skilful in managing people, and projecting confidence and understanding.

In conducting the meetings, be proactive, not reactive. The aim is to bring the issues to the attention of the employee in an effort for them to realise that they are underperforming and that they are not reaching expectations. This is not a forum to be aggressive and punish the employee. Instead strive to support the employee because if they are subsequently able to improve their performance, then it is to the overall benefit of the business.

You want to be able to clearly and effectively communicate the issues so that the employee is able to understand and acknowledge that a problem does in fact exist. In line with providing the employee an opportunity to reply, be prepared for negative or defensive responses. Nevertheless be patient and reiterate the standards expected of the employee in the position s/he is in within the company.

CREATING THE RIGHT ENVIRONMENT The role of Managers Managers are critical to the success of the organisation. Not only are they placed in key positions which entails significant responsibility, they are also a key link in ensuring that staff perform to the level expected of them.

At a basic level, managers are pivotal in ensuring the following: > Right job fit Prospective employees should be matched or fitted with the position that best suits their skills, qualifications, expertise and experience. Employees who are good at their job and enjoy what they are doing are better performers. > Maintaining a positive relationship Managing perceptions of the organisation by explaining organisational objectives, encouraging innovation, ensuring employees understand the benefits of working within the organisation, and emphasise positive features. > Employees understand their role and impact Create an understanding on how the employee’s role contributes to the overall workings of the organisation and how they assist in achieving its goals. This ensures they feel valued and wanted.

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> Encourage a culture of performance Foster a culture of communication where employees don’t feel scared or intimidated to discuss problems. Encourage improvement and do not actively blame employees when things don’t go to plan through no fault of their own – be flexible and support improvement. > Commit to employee development Helping employees achieving career progression – if employees show a desire to progress through the organisation, encourage their professional growth and help develop knowledge and skills in their current position that might be useful for future job opportunities.

THE PRELIMINARY STEPS In the context of this booklet, we will focus on managing the performance and conduct of the employee, and steer clear from allegations or instances of bullying or harassment.

Although there is some overlap, bullying and harassment generally involve complaints of improper behaviour which need to be promptly investigated, including identifying any relevant witnesses.

Identify It is no use waiting for an issue to become ongoing before addressing it. Once you begin to identify a lack in performance. It is appropriate to consider the appropriate steps designed to overcome these matters.

‘Poor performance’ or ‘underperformance’ is an umbrella term that encapsulates a raft of behaviours. In brief, poor performance can be exhibited in the following ways: • Unsatisfactory work performance, that is, a failure to perform the duties of the position or to perform them to the standard required (e.g. stock not being rotated, cash register failing to balance, rude to customers) • Non-compliance with workplace policies, rules or procedures (e.g. failing to notify management of lateness or non-attendance) • Unacceptable behaviour in the workplace (e.g. swearing, insubordination) • Disruptive or negative behaviour that impacts on co-workers (e.g. social media activity, bullying)

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Analyse Once the problem has been identified, the employer should determine: • How serious the problem is • How long the problem has existed, and • How wide the gap is between what is expected and what is being delivered.

Analysing the problem will necessarily involve investigating the matter which may require you to speak to managers, employees or witnesses to gain a solid understanding of the issue/s at hand.

Once the problem has been identified and assessed, the employer should organise a meeting with the employee to discuss the problem.

Prepare You don’t plan to fail, you fail to plan. The critical feature of a good meeting is preparation.

Whether it is a matter to do with the employee’s performance or their conduct, you need to have the issues documented and ready to present to the employee for their reply.

Broadly basing a performance issue on ‘attitude’ is not sufficient without direct and relevant examples of the problem, and the impact it is having on the workplace. Therefore have as much as detail as possible before progressing to a meeting.

Check whether employee has received adequate training and supervision, and been supplied with adequate resources and other assistance to perform the job effectively.

Similarly, check whether employee has been provided with sufficient information about the job to understand what is required from him/her to perform the job effectively – eg what are the key outcomes/results required? If not, this is a consideration or element to incorporate as part of the strategy for redressing the issue.

Schedule From a procedural point of view, you need to ensure a fair process is carried out, including in particular the method in which the meeting scheduled. There are a number of best practice suggestions to apply which are simple yet pivotal to ensure the meeting is conducted appropriately in a comfortable, non-threatening environment. > Notice of the meeting Ideally, an employee should have at least 24 hours’ notice that they are required for a meeting to address whatever issue it may be with respect to their performance (e.g. late to work, register failing to balance etc.). The intention behind the provision of notice is to provide the employee adequate opportunity to prepare for the meeting and not to feel ambushed. More importantly, with the advent of stress claims arising from performance management meetings, a good safeguard against the possibility of a successful claim, among other things, is providing adequate notice.

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> Support Person Providing the employee the opportunity to have a support person present creates a calmer atmosphere and indicates that you don’t intend to berate or ‘gang up’ on them.

The support person could be a family member, friend or work colleague, and their role is to essentially act as their witness. In some cases the employee chooses not to have a support person present, but it is nevertheless critical to document that a support person was offered.

In the event the child is under the age of 18, it is strongly advised to ensure the child’s parent or guardian is present in the meeting. > Organise an independent 3rd party The role of the 3rd party is to take notes on the date and attendees, issues identified in the meeting, the employee’s responses and comments, and any further actions or plans concluding from the meeting. Usually, this will be someone in senior management, and the use of their notes is to act as a reference point for the review meeting and to ensure that the employee doesn’t attempt to allege that s/he was coerced or bullied in the meeting. Having the employee sign off on the notes acts as an acknowledgment that they agree the notes are an accurate reflection of the meeting.

With these steps in mind, you are in a favourable position to commence the performance management counselling session.

THE INITIAL MEETING Conducting the Meeting We have discussed the preliminary and preparatory steps which should be undertaken before the initial meeting to discuss the issues surrounding the employee’s performance. It is now necessary to outline the best practice guidelines for conducting the meeting.

Strategise An essential element of preparing for a meeting which has the potential to be conferential is to strategise in terms of the way you approach it. A combination of approaches can go a long way to achieving the most positive outcome > Win/win This approach is built on problem-solving and ensuring the situation does not turn into a power struggle. Rather than say, ‘You are wrong, and you should be doing it my way!’ you should be saying, ‘I want to win and I want you to win too’. This approach deflects the conflict or performance from being adversarial and one of defence and attack, to cooperation so as to achieve a mutually beneficial outcome. A good way of applying this approach is to find out what the needs and interests are of the parties; and what outcomes are being sought. This will require tolerance and acceptance of individual

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differences; openness in terms of the solution to adopt; and an attitude of addressing the problem, not the person. Ultimately, your goal is to have you staff performing to the satisfactory level required of someone in their position, and the staff member wants to ensure they are meeting expectations and not in a position where their job is compromised. > Creativity Rather than dwelling on the gravity of the performance issue, this is about turning the problem into a positive. Instead of seeking to punish, the underperformance may in fact unearth a need for a policy, or a deficiency in the way procedures are administered or handled. Do not be afraid to delve deeper for fear of revealing an underlying problem – if it’s caused an issue, then it’s worth addressing! > Assertiveness As the manager or owner, you hold the power in the meeting, but don’t let this get to your head. Be appropriately assertive, particularly when addressing the performance issue as a whole and the impact it has on the business. This does not mean shouting – it means affirming that the issue will not be tolerated but that you are willing to work with the employee to remedy the situation. This will communicate how the situation is looking from your perspective, and how you would like it to be resolved. > Cooperation The overarching principle in the booklet is the need for cooperation. Cooperation will help to actively seek a solution. When faced with a performance issue, ask open questions to explore the underlying matter and clarify details; find options; and always refer back to legitimate needs and concerns (from the perspective of the individual/s and the business). > Attack the problem, not the person Rather than focus on being hard on the person, emphasise the severity of the underperformance. This will help ensure it is not a personal attack and communicate how the problem is damaging to all parties involved, and specifically on the operations of the business.

Outline the issues Having collated your information with specific and direct evidence supporting your points, this is your chance to constructively bring the issues to the attention of the employee. If the issue is a matter of the employee’s performance, go through the employee’s job description and duties, and objectively assess their performance. If it is a matter relating to the conduct, have specific details as to the dates and nature of the incident/s, and reference relevant policies and procedures which are the subject of the employer’s employment.

Assess the employee’s performance in an objective way, and do not draw attention to

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personal characteristics. Focus on actual job performance and outcomes, and rely on actual samples of job behaviour or relevant records (such as attendance, error rates, etc).

There is no use being general in your comments e.g. ‘You need to rotate stock properly’.

You need to be specific in the expected level of performance so as to ensure the employee is aware of the level in which they must undertake their duties. It is more useful to say ‘I would like you to greet customers with a smile and a friendly “hello”’ than to say “I want you to provide good customer service”.

In basic terms, you should explain: • what the problem is • why it is a problem • how it impacts on the workplace, and • why there is a concern.

As has been discussed, sometimes the employee is unaware that their performance does not meet expectations. It is therefore necessary to refrain from inferring intent to avoid getting it wrong. For example, to say that someone was aggressive is vague in meaning and assumes you know what was intended by the behaviour. If you say, “when you shouted...” the employee knows exactly what you are discussing and you avoid for example, the person replying “I was not aggressive; I raised my voice because the customer was hearing impaired”.

To offset any adverse feelings felt by the employee in having this sort of meeting, it may be facilitative to the overall successfulness of the meeting to also outline recent positive things that the employee has done or achieved to show them that you also recognise and appreciate their strengths.

When explaining the issue, it is important to confirm that the employee understands that there is a shortfall or gap between what is happening and what is required, and that they are shown or understand what is subsequently required of them to ensure they meet expectations.

In dispensing feedback, it is always necessary to be fair and accurate. Ideally therefore, it is best place for the feedback to occur soon after the issue occurred, and from someone who knows about the employee’s work and their performance.

Right of Reply Regardless of the reason for the meeting, the employee must always be given a right to reply. At the very least, it shows you have given the employee an opportunity to explain the behaviour. In some circumstances, it may reveal mitigating factors explaining the behaviour or further issues within the workplace that would not have come to light otherwise.

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In an instance of lateness, there is no use saying “Jeff, you were late again, you should come to your shift on time”. Instead, the statement could be rephrased as follows: “Jeff, I noticed you came in 10 minutes after your shift was scheduled to commence. Was there a reason?”

Due consideration should be given to the explanation of why the problem has occurred or to any other comments the employee makes. Reconsideration of the situation may be necessary if there have been mitigating circumstances or new information revealed.

Performance Plan With reference to the employee’s job description, set down a series of achievable and reasonable targets which you expect will be met by the time of the review meeting.

Explore strategies that may assist performance to improve, such as retraining, development courses, changing work methods/procedures, improving resources/back-up, etc. Again explain (and provide copy of) the key performance standards and outcomes require for the job.

The idea here is to outline your reasonable expectations and outcomes which are to occur from the meeting, and to emphasise common ground and focus on positive possibilities. It is fundamental that you offer the possibility of further assistance, including retraining and mentoring (depending on the circumstances) to emphasise that you as the employer are doing everything within your power to address and rectify the issue. The employee is also made aware of the consequences for him/her if the poor performance continues to occur.

The performance plan can be drawn up to reflect the understandings arising from the meeting, including: • the identified areas requiring attention; • the expectations of the employer; • what is to be achieved over the specified period; • clarification of roles and responsibilities; • an offer of retraining; and • timeframes for improvement The plan forms the basis for subsequent meetings and acts as the key method for review.

To reflect the common understanding of both parties, the plan can be signed and a copy offered to the employee for his/her records.

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Monitor The initial meeting has formally brought the issue to the attention of the employee, a plan for improvement has been sent; and the employee is now aware that their performance will be monitored.

An adequate time frame should be set during which the employer can review the performance/conduct of the employee, and then subsequently provide feedback. Usually the review meeting is set 4 weeks from the date of the initial meeting.

If issues continue to arise before the date of the review meeting, you should take down details of the incidents and address them promptly. For example, if the initial meeting related to ongoing issues of lateness, and there has been an undertaking by the employee that s/he will arrive on time, then if in the week following the counselling session the employee again arrives late to work, then you should consult the employee and seek their explanation. This allows you the opportunity to provide ongoing feedback, and depending on the circumstances, including the employee’s reasons or explanation, disciplinary action may follow.

THE REVIEW MEETING Even if the employee’s performance improves and there is no longer an issue, a review meeting should still be held. This enables both parties to acknowledge that the issue has been resolved and the employee is aware that this is the level of performance expected of him/her going forward.

The employer should provide both positive and negative feedback to the employee and should work with the employee to ensure that performance improvements are sustained.

If the objectives or targets of the plan have not been met or the employee’s performance does not improve, then it’s necessary to consider further counselling, retraining, or issuing formal warnings.

In the event that a warning is issued, a further review meeting should again be set to ensure that the requisite level of performance expected has been met.

The business will ultimately suffer if you don’t follow through with the performance management process and consequently allow the employee to revert to their old ways.

Although there needs to be some flexibility and patience in allowing an employee sufficient time to remedy their performance, this should not mean putting your eggs in one basket and hoping the employee improves their performance without ongoing consultation with management.

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ISSUING A WARNING Although warnings can be written or verbal, in the context of an employee failing to respond to a performance management meeting, it is more appropriate to issue a formal written warning. The written warning indicates that the employer is no longer willing to tolerate the actions or poor performance of the employee, and is a stern message to the employee to immediately improve his/her behaviour.

There is no set rule that an employee must be issued three warnings before termination is valid. Each situation is judged independently according to the individual facts. Depending on the severity of the issue, the matter may only warrant a verbal warning (recorded in the diary), as opposed to a written warning.

If the employee’s poor performance is ongoing and is failing to reach the expectations required of a person in the same role, then it may be necessary to consider termination.

In the context of an unfair dismissal application, the provision of warnings plays a strong role in attempting to show that the employee was previously warned of the prospect that continued poor performance could lead to a dismissal, and failed to adequately respond. Therefore, there should be a paper trail tracking the relevant issues leading up to the dismissal.

A written warning can serve as a definitive indication for the employee that his/her behaviour or performance does not meet expectations, and therefore it positively spurs the employee to alter the way they undertake their duties and consequently solve the problem.

POLICIES Policies are a fundamental way of informing policies of the proper procedures and rules associated with the workplace. Policies in the retail environment cover a wide range of matters, including the use of mobile phones, bullying, harassment, and balancing cash registers.

But while it is essential that you have relevant policies and procedures developed for your workplace, if those policies are gathering dust in the filing cabinet and are not enforced, they are of no use.

There are five essential tips to encourage compliance with your policies: 1. Tailor all your policies and procedures to suit your specific workplace 2. Train your workers in the policies and procedure relevant to their work – explain the purpose of the policy and why it’s important for your workers to follow systematic procedures.

3. Ensure that all policies and procedures are readily accessible and available to all workers, all the time.

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4. Review your policies and procedures regularly to ensure they remain up-to-date and relevant.

5. Supervise your workers and monitor them on a regular basis to ensure they are following policies and procedures.

In terms of enforcement, be sure that all policies and procedures are consistently applied.

Situations where some employees are issued warnings or terminated and others escape punishment without any discernible difference in the two circumstances will hinder the success of sufficiently enforcing the disciplinary outcome.

The courts essentially have held that if the policies are there, they must be complied with.

The logical consequence of not following a policy is that a failure to follow a fair procedure will result in compensation being awarded by the courts to an employee for that failure.

If employers have formalised their own performance management procedures into a policy which has been signed or distributed to employees, then they need to ensure that they comply with it, otherwise they may be leaving themselves open to the suggestion that they are in breach of their own policy. In certain circumstances the terms of a policy may be regarded as contractual terms which are implied into each and every contract of employment, and therefore failing to follow your own policy may expose you to a breach of contract claim. In cases, it has been held that that the policies adopted by the employer were incorporated into the employment contract because the contract required the employees to comply with policies.

It often transpires that you go through performance management process and pursued all alternatives to improve your employee’s standard of work you then have to assess the progress. Giving your employee every opportunity to improve provides an excellent opportunity to the employee and the employer the satisfaction of knowing that everything has been done to help the employee. However if you reach the point where there is no further likelihood of development no matter what you have tried to achieve then you will need to consider other options.

Termination of Employment The purpose of this section is to provide employers with a basic understanding of the current laws relating to termination of employment, providing guidance on how to avoid problems and suggestions on how to deal with them should they become serious.

We will firstly examine how important it is to provide employees with an understanding of your workplace rules and the need to give employees a chance to assimilate into your workplace culture.

After a proper induction process is undertaken, and the employee has been given guidance on how to do the job, you may find you need to give an employee further

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directions of how you want work performed. Sometimes this approach works out well, but sometimes the employee is simply not suited to your workplace and then action needs to be taken. It is far easier to deal with a potential problem immediately rather than letting the matter fester and become unmanageable.

There are suggestions on how to provide guidance to a new employee. If after attempting to deal with a problem such as poor performance (or any other issue) you may find it necessary to dismiss an employee. It is important for you to follow the correct procedures prior to termination in order to protect your business.

Applications for unfair dismissal may be made by employees in Fair Work Australia. We will consider the current laws relating to unfair dismissals, the many situations that can lead to termination of employment, the process that is needed before ending a contract of employment and the procedure that is followed should the matter go before Fair Work Australia.

There is also another type of employee complaint that can now be made to Fair Work Australia and this involves an application for what is called, “Adverse Action.” Such applications may be made under industrial laws designed as General Protections for employees and this type of application will be considered in this booklet.

Avoiding Workplace Problems Some employers are able to go through their entire working lives without ever experiencing any workplace problems. Unfortunately, there are now many rules and regulations, some of which are open to interpretation, that can result in an employee not seeing an issue in quite the same light as an employer. Ensuring that the correct wages are paid to employees, that an employee’s terms and conditions are applied as required under an award or agreement and that employees are given guidance on how to work together will go a long way to establishing the foundation of a harmonious work place.

Selecting new employees is never easy, but it is worth adopting a cautious approach before making an offer of employment, therefore it is recommended that an employer should always check an employee’s previous employment and references and care should also be taken with the interview process.

The Basic Rules for New Employees Provide Guidance and Training Provide Provide guidance and training to new employees - make sure employees know your workplace rules.

A new employee will often feel very nervous starting off in a new job. An employer may therefore justifiably expect that the employee will need a few days or even weeks to settle into a new work environment.

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Patience and tolerance are important in order to give an employee a fair chance to assimilate into the workplace.

Provide the employee with the store handbook , which should contain all the standard policies particularly those in relation to sexual harassment, occupational health and safety, workers compensation and security procedures.

If you have any training or induction programmes that you require your employees to attend then you must pay wages to the employees for their attendance. For example, if you train your employees in register procedures, occupational health and safety or any one or more of your policies, then you should have each employee sign a register of attendance.

Very often employers know that an employee attended a training session but there is no evidence that the training actually happened.

Deal with Problems Promptly Once your employee has settled into the job you should then monitor the employee’s progress. The size of your business will determine how long you have to monitor an employee’s suitability for the job. Some employers like to give a 3 month “probationary period” in which to monitor an employee’s performance. If the employer feels that 3 month’s probation is appropriate then that is acceptable. However, a probationary period does not have to be specified, it should be noted that an employee is restricted from taking any action for unfair dismissal against an employer depending on the length of the initial employment, not the length of the probationary period.

The following initial employment periods apply before an employee can take an action for unfair dismissal against an employer: • Small Business - a period of 12 month’s employment required • Larger businesses - a period of 6 month’s employment required.

It is also important to note that a casual employee also has a right to take an action for unfair dismissal if the employee has been working on a regular and consistent basis and has a reasonable expectation of ongoing employment.

Do not hesitate to act once you detect there is a problem with an employee’s performance.

If you allow the problem to continue without attempting to remedy it then it could, and probably will, become more problematic. Once the initial period of employment has been completed and no action has been taken, then the termination process is more difficult.

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Monitor Behaviour Monitor a new employee’s behaviour - provide feedback, remedy any faults, take action.

It is appropriate to provide feedback to an employee if there are any difficulties with employment performance during the first few months of work. If for example an employee is not able to use the register correctly then give some further training and then if the employee is still unsuitable you may have to terminate the employment. If you do this with in the initial period of employment (see above: initial employment periods) then the employee is not able to take an action against you for unfair dismissal. The initial period of employment provides an employer with the opportunity to assess the employee’s suitability for the position and therefore has a right of termination during that time.

If you do terminate an employee’s employment during the “initial employment period” you should provide a reason if the reason is “not suited to the work” – then say so.

If an employee’s work performance is unsatisfactory then deal with the problem. If there is friction in the workplace because employees are not cooperating with each other, then address the issues. Unfortunately, not all people, no matter how hard we try, will always see eye to eye. Therefore, being patient, and being a good listener, when problems arise will help an employer to overcome difficult issues. It is always a sound policy to try to resolve issues promptly before they escalate to another level. Always listen to explanations, remember there are always two sides to a story, and try to be fair to everyone. Record your findings of any interview that you may conduct.

Use a counselling process to deal with problems. The process does not have to be intimidating in any way. Initially it should be used to provide a forum for discussion and speak to all parties concerned. Very often by addressing a potentially difficult issue early it resolves the matter and everyone can get back to work quickly and happily.

Getting the Termination Process Right Follow the Rules of “Procedural Fairness” Procedural fairness is one of the most important aspects of this booklet and it will be referred to many times. What is it and why is it so important?

“Procedural fairness” means the employer should conduct a fair interview process with an employee in relation to any workplace issue.

It requires the following: 1. Provide an opportunity to the employee to have a person of their own choice present during any work counselling session.

2. As the employer you should also have another person present. It is recommended that your witness takes notes of what is said at the meeting.

3. At the meeting identify your causes for concern. Do not make any allegations outright, particularly if the issue is associated with the removal of money or goods from the store.

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4. Do not specifically mention other employees’ observations; rather base your concerns on your own observations. If the issues are related to performance, highlight the aspects of behaviour as specifically as you can.

5. Ask for the employee’s responses.

6. Listen to the employee’s responses you can then make a decision about your next step.

7. Exercise patience when listening to the employee.

8. Your next step may depend on what the employee has said in response. If you are uncertain about how to deal with the employee’s response you can always bring the meeting to an end and seek further advice. If you need to suspend the employee’s employment you are able to take this action but it will have to be on full pay.

9. If you are going to give the employee a chance to improve then say so.

10. Give the employee a letter that sets out your concerns and the need to remedy the problems 11. Make sure the letter states that if there is no improvement then it could lead to termination.

12. If you are prepared to give the employee a chance to improve, then say so. Give the employee a letter that sets out your concerns.

13. The letter MUST also contain a sentence that failure to improve or abide by your guidelines in future may result in termination.

14. It is also an advantage to be seen to give the employee whatever support you can in trying to get over difficulties. This may require assistance from the employer or another manager.

It is important that you follow a clear process that affords the employee procedural fairness at all times.

Please note that if you have less than 15 employees, you still need to exercise caution in this process. Having less than 15 employees does not provide a blanket protection when terminating someone’s employment. As a small business, you will need to follow the Small Business Fair Dismissal Code.

An employer is advised to follow the procedural fairness rules regardless of the circumstances.

If you are addressing an alleged theft issue or a performance problem, the process of fairness remains the same.

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Why is Procedural Fairness so Important?

It is “unfair” to accuse an employee of any wrongdoing without giving the employee a chance to explain him or herself. It is also seen as unfair to have the employer and a manager in an interview with an employee if the employee is alone and without a witness.

This could be seen as intimidating for an employee.

What if during counselling the employee “storms” out of the office saying, “I resign.”

Several hours later the employee then calls you and says, “I didn’t really mean to resign and I want to return to my job”. There are some decisions that clearly state that a resignation in the “heat of the moment” may not constitute a true resignation. That does not mean to say that you cannot continue with the counselling session that you were conducting in the first place.

Employer Checklist 1. Make sure your employees know the basic rules for your business, including: • register procedures • providing quality customer service • how to make personal purchases in store • OHS rules • reporting accidents • sexual harassment policy • etiquette rules (dress standards, no eating when serving, use of mobile phones etc) 2. Deal with any workplace issue promptly 3. I f you have an issue with an employee’s performance try not to exceed the “qualifying period” in which the employee can take an action for unfair dismissal 4. Know the meaning of “procedural fairness”.

5. Apply the “procedural fairness” rules.

The Law and Unfair Dismissal The Fair Work Act (2009) states that a dismissal is unfair if it is “harsh, unjust or unreasonable” or an employee resigns because he or she was forced to do so by the employers conduct.

A dismissed employee must lodge an application with Fair Work Australia within 14 days of the dismissal and may seek reinstatement to the former position or compensation.

Once a dismissal application is lodged it will be followed by a telephone conciliation conference.

The conference process is an opportunity for the parties to discuss the issues and the task of the Conciliator is to help the parties to resolve their differences.

If the matter does not settle at the conference then the matter will proceed to a formal

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hearing in Fair Work Australia where a Commissioner will make a decision.

Many questions arise when we consider termination of employment that has led to an “unfair dismissal”.

1. Has the employer handled the dismissal properly?

2. Was there a valid reason to dismiss the employee?

3. Could the entire dismissal have been handled differently?

These, and many other questions, need to be considered when dealing with an application for alleged unfair termination of employment.

There are many reasons why termination of employment occurs. They include poor work performance, breach of the employer’s business rules or an act of serious misconduct.

Making a decision to terminate an employee’s employment should not be made lightly because even if the dismissal decision appears to be clearly justified, the correct procedures are not followed or there are extenuating circumstances that should have been considered, the dismissal may be still be deemed wrongful.

Therefore, even where an employer believes that there is a genuine reason for the dismissal there may be reasons why the employer should exercise caution and consider alternatives. Even in the most obvious circumstances, for example in relation to what appears to be a blatant act of dishonesty, employers should follow the procedural rules before the termination takes place.

Is the Dismissal “Harsh, Unjust or Unreasonable?”

If an employee makes an application for unfair dismissal the employee has to prove that the termination was harsh, unjust or unreasonable.

Fair Work Australia is obliged to consider a number of issues when deciding whether the treatment of the employee was harsh, unjust or unreasonable in particular including: 1. Whether there was a valid reason for the termination.

2. Whether the employee was notified of the reason for the termination.

3. Whether the employee was given an opportunity to respond.

4. Whether the employee was allowed to have a support person present.

5. If the dismissal relates to poor performance was the employee warned about the unsatisfactory performance before the dismissal.

6. The length of service and previous conduct of the employee.

7. Whether there are any specific reasons that Fair Work Australia needs to take into account.

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Types of Employee Misconduct Serious Misconduct If an employee commits an act of serious misconduct then an employer may dismiss the employee instantly. This is referred to as summary dismissal and means an employer is not required to give any paid notice to the employee.

Serious misconduct will generally involve summary dismissal and includes workplace theft, having or distributing illicit drugs in the workplace, intoxication at work or fighting in the workplace.

Workplace Theft Most stores have CCTV cameras installed in their stores and these are invaluable in establishing the events surrounding an alleged theft.

Another protection for an employer is to have a definite procedure or set of rules for the removal of goods from the store. (A policy and procedure is located in the Appendix to this booklet) This procedure should be made very clear to employees at the beginning of their employment that there should be no deviation from the rules that are set down by the employer.

You need to make it clear that if drinks or food are obtained in the store, for consumption in the store, they have to be paid for before they are consumed.

If you suspect that an employee has removed items by any means from your store, you need to address that matter with the employee and you should follow the rules of procedural fairness.

If you have any CCTV footage you should show the film to the employee and ask for an explanation. Do not accuse the employee of stealing - remember that is for a court of law to hear and determine. However, if the employee admits to removing money or goods and you decide to terminate the employment then your reason for dismissal should be for “breach of workplace policy” or “serious misconduct” – not theft. You may have already asked for police assistance in an alleged theft so it will then be your decision whether to press the charges with the police.

If during your investigations of an alleged theft you have any uncertainty about your suspicions, you could discuss the issues with the police prior to taking any action.

A question that often arises when goods are removed is whether the value of the items removed could be too small to constitute theft. The employer should always stress to employees that it is not the value of the items that is in question, it is the fact of removing them from the store without payment that is important.

It is very important for the employer to be absolutely sure that the procedure for the purchase of goods is clearly known to the employee. Also, it is essential to fully investigate

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all the facts of the matter, including checking that no other person gave permission for the goods to be removed from the store.

Illicit Drugs It is not acceptable for any employee to have a non- prescription drug in the workplace.

If you suspect that an employee has illicit drugs at work either for personal use, or for others, then you should follow exactly the same procedure as you would in regard to theft. You need to follow procedural fairness and address your concerns with the employee. If you have proof of your suspicions then you can terminate the employee, without notice and again your reason for dismissal is breach of workplace policy. The matter should be reported to the police. In a retail environment it is not permissible to impose random drug testing.

Intoxication An employee must not be under the influence of alcohol at work. Employers are often concerned when an employee has been drinking the previous evening and there is a smell of alcohol from the employee. This is a very sensitive issue that can be addressed with the employee in the same manner as any other workplace matter should be addressed. Just follow the process of letting the employee know your concerns and asking if there are any problems that may require your assistance. However, it is always difficult to prove that an employee is “drunk� and asking for a breath analysis is not permitted. The issue might require on-going counselling and if the problem becomes serious then the matter should be referred for a medical assessment or provide an offer of outside assistance to the employee.

Fighting in the Workplace An employer may not condone employees arguing or disagreeing with each other at work but there will always be instances of disaffection between staff. Generally supermarkets and smaller stores do not experience high levels of violence between staff. However, that does not necessarily mean that it does not or will not happen. An employer is generally justified in terminating the employment of employees who engages in fighting but, again it is necessary for the employer to fully investigate the incident and follow a proper procedure. In most cases it is advisable to terminate the employment of both parties regardless of fault.

Employer Checklist 1. Summary dismissal is for serious and wilful conduct 2. Serious misconduct is limited to a small number of matters as listed above.

3. Always investigate all the facts prior to a dismissal.

4. In all termination matters the employer should still follow the rules of procedural fairness.

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General Misconduct This section deals with termination of employment for misconduct that relates to all other issues other than allegations of theft, workplace drunkenness or illicit drug taking at work. General Misconduct covers a multitude of issues including, but not limited to, poor performance, insubordination, rudeness to customers, bullying or lateness for work. Every case is different but it should be noted that the rules that should be followed are the same.

Dealing with Unsatisfactory Performance It is not uncommon for employees to have made a sound contribution to the workplace for several years and they have become used to the store procedures. Then their performance appears to have deteriorated and the employer becomes dissatisfied. Such matters should be addressed and be dealt with by the employer as soon as there is any change to the work performance. Otherwise these problems become difficult to resolve. It is advisable to speak to the employee as soon as possible and follow the procedural fairness rules when addressing the issues. If you decide to address the problem verbally make sure that you make a note of the date and what was said to the employee.

The next step is a written warning. There is no rule that says there has to be 3 written warnings, but it is advisable to have at least one written warning which must always include putting the employee on notice that if there is no improvement then the job is at risk of termination.

A warning letter should contain an outline of the issues that you need to address. It should state that the behaviour is not acceptable. The employee should be given an opportunity to improve, perhaps with the assistance of the employer and, if there is no improvement, the employer should consider terminating the employee’s employment.

Lateness for Work An employee may have a legitimate reason for arriving late at work on one occasion and an employer should be considerate if there is reasonable excuse. However, consistent lateness should not be tolerated and be addressed on all occasions. The same process should be followed as for all other breaches of workplace rules. If a person is continually late for work then the matter should be properly addressed. Allowing continual lateness to go unchecked creates an unacceptable feeling amongst employees who measure their own performance by what others are allowed to do. A written warning should be used for a second incident of lateness and if it happens a third time then consider dismissal.

Swearing at the Employer, at another Employee or at a Customer There are varying opinions on the degree of the bad language that is permissible and to whom the comments are directed. The use of foul language towards an employer, manager or a customer is not acceptable. In some cases it may be appropriate to consider an employee’s actions according to the circumstances. Generally, swearing directly at an employer or a customer would be considered sufficient to terminate an employee’s

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employment. However, if the incident involves other employees the employer is advised to go through the proper process and discuss the issue with the employee and establish what you consider is acceptable workplace language. Some employees may regard the use of bad language as harassment and such conduct does not set a good workplace standard.

Denigrating an Employer on Emails or on the Website There is an increasing number of incidents involving employees making comments about their employers on Facebook and in email transmissions. This is not acceptable behaviour and requires immediate attention. If an employee does denigrate the employer then the employer could terminate the employee’s employment if the material that has been published is defamatory or is damaging to the business. Certainly, any threats or attempts to intimidate or frighten the employer or any employer should be immediately reported to the police.

Does Employment Extend Beyond the Workplace?

This will depend on whether work is related to the employment when the employee is outside the workplace. If the employer asks the employee to travel on his /her behalf or represent the employer in some capacity then the employee is under a duty to act in the best interests of the employer. The duty of fidelity and loyalty to the employer is always present no matter what the circumstances might be and if that duty is breached then the employer is able to take some action against the employee.

In a case that was heard before the Commission a number of employees travelled to an interstate conference at the request of the employer. After the days training sessions had finished a number of the employees engaged in drinking and having a night out together.

On their return to the hotel the partying continued and a number of them were advised by the hotel staff to behave and to quieten the noise. The employees took exception to the hotel requests and proceeded to kick furniture and they became even louder. The hotel management complained to the employer and the employees were subsequently dismissed. Management was found to be justified in its actions.

Abandonment of Employment Sometimes employees who have been rostered on for work and have even been working for the employer for several years suddenly do not arrive for a shift. This can have a serious effect on the business and often leaves the employer feeling extremely angry.

The solution is to be patient and begin the process of trying to establish the employee’s location. There could be many reasons for the situation. The first step is to try to make personal contact by phone and then try to contact a family member. If this fails the next step is to write a letter and ask for an immediate response. The letter should state that unless contact is made within a period of 7 days then this may be considered abandonment of employment. If you do not receive any contact then you will need to send a second letter confirming that the failure to notify you will now be considered an abandonment of employment. Follow up this notification with a termination letter.

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Demotion Employers often ask whether it is permissible to demote an employee if the employee is not performing properly in the current position.

Under the Fair Work Act, a demotion will not be regarded as a dismissal if: 1. the demotion does not involve a significant reduction in salary or duties and 2. the employee remains in employment.

However if the demotion involves duties that are much lesser than those being performed and the employer takes away a large part of the salary then of course it will be a dismissal.

However, if you have counselled the employee and the employee does not improve and you intend to dismiss the employee after following a proper disciplinary procedure then it is always an option to ask the employee first if he/she would like a lesser role before you dismiss the employee.

Bullying All employers want to establish a workplace that is based on mutual respect, tolerance and good communication. Unfortunately, one of the biggest issues facing workplaces currently is that of “workplace bullying.”

Workplace bullying may be defined as “any less favourable treatment of an employee by others in the workplace”. It can include behaviour by an employer or employee that intimidates, offends, degrades or humiliates another employee.

It can range from very obvious verbal assault to more subtle psychological abuse. It usually occurs where one party holds a position of power and it can occur between an employee and a supervisor or between co employees. However, not all bullying is so clearly identifiable. There are many subtle ways in which employees can be harassed and marginalised at work. Behaviour such as spreading malicious gossip, attempts at social exclusion, constant criticism or insults, or constantly giving an employee unpleasant tasks can all be instances of bullying.

In addition today we have cyber bullying which may include derogatory remarks and insults being made on Facebook and in emails.

Very often employees are not aware that they are bullying other employees. Their behaviour is often lacking in thought and understanding or they do not appreciate that their conduct is intimidating or even hurtful. The result is that an employee can become stressed as a result of this conduct. Very often bullying results from a misuse of power.

Whilst most managers are able to exercise power in a conscientious and responsible manner there are unfortunately those who abuse that power to the detriment of the employees. This reinforces the need to be vigilant in helping managers to recognise the importance of their roles, particularly in being able to effectively communicate with those under their charge.

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Stress is an unmeasurable symptom and it will affect employees in varying degrees. In one case that was before the Courts in recent times, an employee had actually taken her own life as a result of workplace bullying.

To properly protect your employees and your business, it is a good idea to have an antibullying policy, which is signed by all staff. This ensures that all employees are aware that certain behaviour will not be tolerated, and that bullying is taken seriously.

If you suspect bullying among your staff, no matter how minor it seems, or if you receive a complaint from an employee, it is important not to ignore it. The issue should be dealt with in a confidential and impartial manner.

It is advisable: 1. To listen to the complaint.

2. To advise that there will always be differences between individuals in respect of experience, age, background, attitudes etc. but these differences have to be accepted as part of working together.

3. To investigate and to assist where it is established that bullying is occurring.

If there is an incident of bullying then individuals may be required to change their style of operating in the business or adapt their behaviour.

An employer cannot tolerate having bullying type behaviour at work.

Dismissing Young Employees If your employee is under the age of 18 years, it is always appropriate to have either a parent or some other responsible person present. You should not interview a junior employee in regard to a likely termination of employment on any issue unless in the presence of an adult.

If you have to terminate the employment of a junior apprentice it is also advisable to contact the apprenticeship company responsible for the apprenticeship contract prior to the termination.

Employer Checklist 1. Address any workplace problem promptly.

2. Do not address a problem by treating it lightly- if an employee is late or an employee complains about another employee then take action.

3. Enter all actions taken in a diary.

4. All written interview notes should be retained.

5. Warn the employee that their action may lead to termination.

6. Use correct procedural fairness at all times.

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Adverse Action As stated earlier, this is a new type of Action under the Fair Work Act. In order to grasp the meaning of an “Adverse Action” it is useful to firstly recognise that an employee has “workplace rights.”

An employee has a right to seek that the employer provides his/her entitlements under an award or a law.

For example, an employee has a right to annual leave or other benefits available under the National Employment Standards. It could be grounds for an Adverse Action if an employer failed to give the employee annual leave.

Other examples that may amount to Adverse Action include an employer using an employee’s membership of a trade union as an underlying reason to terminate the employment or if an employee makes application to the Fair Work Ombudsman for back payment of wages and the employer uses this as a reason to reduce hours of work.

An employer would also be treating an employee or a prospective employee adversely if any discriminatory action was taken against an employee based on the employee’s race, colour, sex, sexual preference, age, physical or mental disability, marital status, family or carer’s responsibilities, pregnancy, political opinion, national extraction or social origin.

Examples of discrimination are as follows: • Paul is gay and he has worked for the Company for 7 years. He is continually rejected for promotion. He is eventually told that the Store owner does not approve of his lifestyle (discrimination based on sexuality).

• Carl is 62 years old and his position is made redundant - he is told he is too set in his ways and is ready to be retired (discrimination based on age).

• Lee is recently arrived from Asia and although his skills assessment is excellent, he is not chosen for the position because of his nationality (discrimination based on race).

• Peter is told that the job he has applied for is suited to a married person because family people are seen as more stable (discrimination based on marital status).

Federal and State laws deal with discrimination, but the Fair Work Act provides wider opportunities for employees to initiate an Adverse Action.

It should be noted that an employer’s “reference” to union membership, or an employer’s query about family leave, or a remark about possible demotion, may be a sufficient “contribution” to a termination case for it to become an adverse action, rather than an application for unfair dismissal. Such comments do not have to be the main reason for the termination for there to be an adverse action claim.

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An employer may not dismiss an employee who is absent on sick leave – this is called absence of a temporary nature. An employee should provide a medical certificate or statutory declaration specifying the reason for the illness to establish that he or she has a “prescribed illness”.

If an employee runs out of personal leave (sick leave) and is absent for a period of 3 months or an aggregate of 3 months over a 12 month period without a medical certificate then the employer may terminate the employment.

It would also be an Adverse Action if an employer engaged in “sham contracting”. This means placing an employee on a “contract for services” by paying the employee as a contractor and not an employee. In South Australia there is a current matter before the Courts involving the establishment of “contracts for services” for two seventeen year old retail employees. The two employees were not placed under an award but given an hourly rate without deductions of tax or superannuation payments or any of the other benefits that apply to a contract of employment made in reliance on an Award.

Procedure for an Adverse Action Claim If an employee lodges an application against the employer claiming that he/she has been denied a workplace right, the application must be lodged within 60 days of the incident occurring. This time frame can be extended and is much greater than the time allowed for an unfair dismissal application.

Where an employee claims that an Adverse Action has occurred it is the employer who must prove that the breach did not take place- in other words the employer carries the “onus of proof”.

The matter may initially be heard in Fair Work Australia and a conciliation conference will take place before a Commissioner, where the parties may agree on to settle the matter.

If an employee chooses not to appear before Fair Work Australia then the matter may proceed directly to the Federal Magistrates Court for a formal hearing. The remedies are extremely rigorous as the employee may be awarded damages and there is no limit of the amount that can be awarded as compensation is uncapped and fines of up to $33,000.00 for each Adverse Action can be imposed on an employer if the employee is successful.

These fines are in addition to any compensation that may be payable.

Claims for Adverse Action will undoubtedly increase over time. It is therefore most important for employers to be fully conversant with the general protections that are available to employees at work.

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Employer Checklist 1. Recognise an employee’s workplace rights.

2. Check award entitlements.

3. Recognise an employee’s union membership.

4. Protect against workplace discrimination.

5. Do not dismiss an employee on sick leave.

6. Adverse Action claims reverse the onus of proof.

The Law and Sexual Harassment What is Sexual Harassment in Employment?

Sexual harassment at work is unlawful under both State and Federal legislation.

It occurs where an employer or employee engages in making an unwelcome sexual advance or engages in action of a sexual nature towards a co employee or a potential employee or a customer and as a result that person is offended, humiliated or intimidated by such action.

Sexual harassment is a form of discrimination because a sexually harassed person loses a benefit which is the right to perform a job without fear or threat from any source.

Discrimination occurs if an employee suffers some offensive interference of a sexual nature at work, either physical or verbal, and others do not suffer the same treatment.

There is a three part test as to whether sexual harassment has occurred: •

the conduct must be unwelcome,

•

it must be sexual in nature; and

• in the circumstances a reasonable person would be offended, humiliated or intimidated.

Comments of a sexual nature may be made by members of both sexes and although complaints are mostly made by females, they are also made by males.

If an employee is sexually harassed at work by a co employee then the employee may take an action against the co worker and also against the employer. The employer is regarded as being “vicariously liable” for the actions of the employees during working hours.

However, an employer may not be liable if the employer has taken all reasonable steps to ensure the safety of the employee at work.

What is “Vicarious Liability”?

When an employee is at work the employer must afford the employee a safe place of employment. The employee must be protected physically and mentally against any action that the employer might take against him or her, but also against any unwelcome action from any third party, and that may include another employee.

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How Far Does the Employer’s Vicarious Liability Extend?

This duty of care can extend beyond the workplace if there is sufficient link between the employment and social activity. The Christmas party and other “work social functions” may be occasions when unwelcome incidents may occur. The employer should always take particular care to instruct employees about their responsibilities where alcohol is consumed and to warn all employees of the importance of responsible behaviour.

Consensual Relationships are Not Grounds for Harassment There are many cases of employee meeting their life partners “at work” and these relationships are often successful ones. There are however occasions when relationships sour and one party cannot accept the severing of the relationship. An employer still has a responsibility to any employee who is forced to endure harassment by another disgruntled employee in such circumstances.

What Steps Should an Employer Take to Prevent Sexual Harassment in the Workplace?

Take steps to build a culture of not accepting harassment in any form. An employer has a legal obligation to provide a safe place of work for all employees and that includes making certain that an employee is not sexually harassed at work.

It often happens that an employee will say, “But we were all just joking around, we were having a laugh and saying things, but we didn’t mean any harm.” Sometimes an employee will say, “But I just thought by saying how attractive I thought she was, and how I would like her to come out with me, that she would feel flattered. I did ask her out several times and I thought she would eventually come around.” These excuses are generally not acceptable and may amount to harassment.

All employees, including management, should be firmly told that touching another employee, even though it might seem to be a harmless, is not acceptable at work.

What do the Courts say an Employer Must Do? Court and Tribunal decisions will state that, “an employer must take reasonable steps to ensure a workplace safe from harassment.” How can this be done?

Below is an extract from a Court decision which explains the employer’s obligations: “It is settled that if an employer wants to rely on the fact that he has taken ‘all reasonable steps’ he must provide an adequate educational programme on sexual harassment issues and must monitor the workplace to ensure compliance with any policies. Merely having a policy in place is not enough, the employer needs to do much more. Educational programmes might include dissemination of literature and the provision of seminars. There might be re- education programmes to ensure that employees have received all relevant materials and understood sexual harassment policies”. In order to be fully protected against a sexual harassment claim you should retrain your staff on an annual basis.

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Most employers have taken the positive step towards preventing sexual harassment by introducing a policy. There is no legal requirement to have one but it is commendable and this is part of taking “all reasonable steps” to prevent sexual harassment in the workplace.

The policy should be comprehensive in that every employee should be able to understand what constitutes sexual harassment, that you do not condone it at work and that if an employee engages in such behaviour then it may lead to termination. There may be provisions in your policy for an alleged harasser to make an apology to the alleged victim but depending on how serious the harassment is then dismissal may be the only solution.

However, having a policy is only one way of demonstrating your commitment the principles of workplace safety and equality.

Employers should also have: • Procedures that allow an employee to make a complaint. The employee should be fully aware of who he/she can approach to discuss a perceived problem in confidence.

• One of the most important aspects of any procedure that is followed is to ensure that an employee’s absolute privacy is maintained. Therefore let employees know that their discussion will be treated confidentially.

• Procedures should enable a full investigation of a complaint and provide for a set of remedies to resolve a complaint.

• It should also be made very clear that an employee will not be victimised at work for lodging a complaint.

• There should be some solutions to remedy the problem such as an apology or in some cases an employee will simply say, “I want the harassment to stop.” That might be enough to resolve the problem.

In addition to the policy and a complete procedure for investigation of a complaint and resolution, the employer should also have a constant flow of communication with the workforce that continually reinforces the need to maintain a harassment free environment.

This includes: • Training sessions on the meaning of discrimination.

• Constant reinforcement of the meaning of discrimination, and sexual harassment in particular through staff meetings.

• Reminders around the workplace of the meaning of discrimination, and sexual harassment, and the employer’s refusal to tolerate such conduct.

Clearly indicate to employees that Facebook or Twitter communications are not private and should not be used to convey any inappropriate sexual comments. Sending emails that contain comments that may be “funny” to some staff are not necessarily funny to others.

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Employer Checklist • Sexual harassment is not acceptable at work.

• There are Federal and State laws against harassment.

• Have a policy and procedures in the store.

• Provide constant reminders of your non harassment policy and training.

• Awareness of a harassment free workplace is highly recommended.

Long term Illness An employee can take as much paid sick leave as they have accumulated to get better from an injury or illness. This means that an employee cannot be fired because they are sick. This is drafted into the Fair Work Act which states that an employer must not dismiss an employee because the employee is temporarily absent from work due to illness or injury.

However, the Fair Work Regulation provide that it is not a ‘temporary absence’ if the employee’s absence from work extends for more than three months of unpaid leave, or the total absences of the employee, has been 3 months or more of unpaid leave in a 12 month period. In such a situation the employer may be able to terminate the employee.

To terminate the employee, the employer requires a valid reason which in the case of a long term illness may include that ‘the employee cannot perform the inherent requirements of the job’.

In the event of an employee’s long term illness, the employer can instruct the employee to undertake a medical assessment to determine the employee’s ability to perform the inherent requirements of their role and their return to work prospects including a timeframe for their return to pre-injury or illness capacity. In some circumstances a failure to participate in a medical assessment may also create grounds for termination.

An employer should conduct a review meeting with the employee to discuss their return to work prospects and their return to work timeframe.

MGA advises that our members seek advice from the MGA Legal and HR Team before conducting the review meeting. In the event that the employee is unlikely to be able to return to work in the foreseeable future, termination may be appropriate.

In an unfair dismissal or an adverse action claim before the Fair Work Commission, the Commission will consider the issue of incapacity as a result of illness or injury and would usually take into account the following: •

the period of past employment

• the nature of the illness or injury and how long it has continued and the prospects of recovery — note that the commission will likely consider the termination unfair if the employee would be returning to work shortly after the review meeting

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•

the terms of the contract, including the provisions as to personal/carer’s leave

• how long the employment was likely to last in the absence of remaining personal leave • the nature of the employment — whether the employee was specialised or simply replaceable in their absence

6. Superannuation When to pay Superannuation contributions including for juniors?

Employers only need to pay superannuation contributions for eligible employees.

Employees over the age of 18 who earn at least $450 (before tax) in a calendar month are eligible for contributions. Employees who earn less than this are not eligible.

There is an added requirement when paying superannuation for employees under 18 years of age. You are only required to pay contributions for these employees if they earn more than $450 (before tax) in a calendar month and work more than 30 hours per week.

The entitlement to superannuation is calculated on a month by month basis.

You must pay an employee’s superannuation contribution in any month that they work enough to become eligible for superannuation contributions.

If an employee under 18 earns more than $450 (before tax) in a calendar month, but works more than 30 hours in just one of those weeks in the month, superannuation is only payable for wages earned in that one week.

For example: Jenny is 17 and works part time. In July she was paid $810 over 4 weeks, as follows: Week Hours Wage 1 25 200 2 15 110 3 35 340 4 20 160 As Jenny was paid over $450 in the month, and worked more than 30 hours in week 3, superannuation must be paid on week 3. For weeks 1, 2 and 4 where Jenny worked less than 30 hours, superannuation is not payable.

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Which fund for employees?

All employees employed under the Federal Award system can nominate their own super fund (you don’t need to offer choice to employees on temporary working visas).

You must provide employees who are eligible to choose a super fund with a Standard choice form (or equivalent) within 28 days of their start date, unless they give you details of their chosen fund first.

In the event that the employee does not nominate a fund, under the General Retail Industry Award the employer is required to make the superannuation contributions to one of the following superannuation funds or its successor: 1. the Retail Employees Superannuation Trust (REST); 2. Sunsuper; 3. Statewide Superannuation Trust; 4. Tasplan; 5. MTAA Superannuation Fund; 6. any superannuation fund to which the employer was making superannuation contributions for the benefit of its employees before 12 September 2008, provided the superannuation fund is an eligible choice fund and is a fund that offers a MySuper product or is an exempt public sector scheme; or 7. a superannuation fund or scheme which the employee is a defined benefit member of.

Employers should note that in the event that their store has an Enterprise Bargaining Agreement, the agreement may specify alternative arrangements.

Superannuation and workers compensation Under the Retail Award the employer must also make the superannuation contributions when an employee is absent from work due to a work-related injury or illness.

Such payments should be made for the period of absence to a maximum of 52 weeks, provided that: 8. the employee is receiving workers compensation payments or is receiving regular payments directly from the employer in accordance with the statutory requirements; and 9. the employee remains employed by the employer.

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CONNECT WITH US For further information on the courses and training we offer, please visit our website or contact us:

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