Author: Shelly Baker
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Can you force annual leave during a Christmas close down?
Q. My business closes each Christmas period for a couple of weeks. Can I direct my employees to take annual leave during a Christmas close down?
A: When a business closes temporarily during slow periods such as Christmas time, this is called a ‘close down’.
Employers may be wondering whether they can direct an employee to use up some of their annual leave entitlements during a close down period, or they may be wondering how to handle this period in general. Employers should check their applicable Modern Award or Enterprise Agreement to understand the rules that apply for the direction of annual leave during such a period and also whether a close down situation applies to their business at all.
Awards vary in content from one to another, so don’t make the mistake of thinking all modern awards will state the same thing in regard to a Christmas close down. Many Awards and Agreements do allow the direction of annual leave for shut downs though. Generally if it is allowed, employers will be required to provide a reasonable amount of notice, and there may be some rules about how the leave must be paid or handled.
Where an employee is not covered by an Award or an Agreement, the employer can direct an employee to take leave as long as it’s reasonable.
Industryus HR highly recommends employers check the relevant Award or Agreement to ascertain the rules, and to speak to a HR professional prior to acting.
If you need assistance with matters such as employee entitlements and the rules around Pay and Awards, you may wish to consider Industryus HR’s membership, where members can get in touch about HR matters whenever they arise. It offers value for money assistance and peace of mind so that you can get on with managing your business. Call us on 07 5655 4047 or click here to book in a free introductory call to find out more.
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Is your independent contractor just an employee in disguise?
Recently we have had a number of human resources enquiries from employers about obtaining independent contractor agreements. Sometimes, upon learning more about the specific work relationship, the worker in question most likely should be an employee and the employer is actually at risk of what is termed Sham Contracting under the Fair Work Act 2009.
Sham contracting occurs when an employer deliberately disguises an employee/employer relationship as an independent contracting arrangement. This generally occurs in situations when a business needs work to be done by someone, but it doesn’t want the responsibility of paying for employee entitlements such as annual leave, workers’ compensation and superannuation.
Quite often employers we speak to confirm that the reason the worker has been engaged as an independent contractor is due to it being more cost effective to do so. Their thinking is that if they can avoid paying entitlements to the worker, employing someone becomes more affordable. The problem with this scenario is that the choice to save a few bucks could very easily result in fines that are substantial in comparison to the money saved. Plus, there is generally the requirement to pay back to the employee the entitlements such as annual leave and superannuation that have not been issued.
We recommend all employers review any independent contractor arrangements to ensure they are not creating a risk. There are a number of common factors that should be considered when determining who is an independent contractor and who is an employee. Some of these include the degree of control the worker has over the work performed, who controls the hours of work, whether anyone else can do the work, how the worker is engaged for the work, and who provides the tools and equipment for the work. The relationship should be looked at holistically rather than considering only one of the elements and it is always a good idea to have this review conducted by a professional.
In summary, it’s important to highlight that employees cannot be independent contractors simply by calling them such in a contract – careful consideration must be given to what is the true nature of the relationship. A very well-known quote by Justice Gray from the 1989 case Re Porter: Ex Parte TWU (1989) 34 IR 179 sums up this fact well and inspiration for our lead blog picture:
“Parties cannot create something which has every feature of a rooster, but call it a duck and insist that everybody else recognise it as a duck”.
If your company uses independent contractors and you are concerned, we offer a free initial consultation for employers. Call us on 07 5655 4047 or book online here.
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iGen: who are they?
As Gold Coast based human resources specialists, we have read a lot in the literature about how Millennials work and communicate as employees. From being disloyal and coddled at home, to expecting to climb the corporate ladder with incredible speed and minimal effort; theories on millennials in the workplace have been well documented and somewhat harsh. While some of these beliefs have proven to be true, the negativity placed on Millennials (roughly born from the early ’80s to mid-’90s) seems to have been largely unfounded. In reality, many employers have reported that where workplace flexibility is supported for a new recruit, Millennials can thrive and are willing to work just as hard as any other generation. Nevertheless, just as we are starting to understand how to get the best from Millennials, there is a new generation hitting the work scene that we need to get acquainted with.
Meet Gen Z, or more affectionately “iGen”. This generation is our most recent school leavers. Born between the late ’90s and early 2010s, there are interestingly some distinct differences between this generation and the Millennials before them.
Jean M. Twenge, Professor of Psychology at San Diego State University provides an excellent insight into iGen. Below are some of the differences compared to Millennials she points out which will help employers recruit and manage this new workforce more successfully.
- iGen is more focussed on work. They are more willing to work overtime to get the job done and make work a central part of their lives. Having experienced the recession as children this generation likely realises they are going to have to work hard to make money.
- They grew up more slowly as teens. They have taken longer to work, drive, and date than previous generations, no doubt due to the influence of the internet and social media. Due to these trends, more young people now arrive in the workplace with less experience and less independent decision-making. Twenge recommends giving iGen careful instructions for tasks and warns they will likely need more guidance than previous generations.
- iGen has lower self-confidence than Millennials at the same age. While Millennials might have expected to be CEO of the company within 5 years or felt entitled to promotion, iGen are less optimistic about their career prospects and are also less likely to consider entrepreneurship, preferring stability over risk-taking.
- A standout for this generation is that it socialises differently to Gen Y and Gen X before them. They prefer to use their phones instead of getting together in person, and this directly impacts their desire to make friends or be in contact with a lot of people in the workplace. Therefore, employers may find that the social aspects of work such as outings and social clubs will hold less appeal in the coming years.
Understanding the drivers of the newest workforce generation will assist your organisation to be able to recruit the younger generations better and understand what they can bring as individuals. Tapping into the unique talents this generation will bring to the table is a no brainer, as iGen are also our next generation of consumers.
We are a Gold Coast based Human Resources provider specialising in advice, compliance and effectiveness. If you are looking for Gold Coast based Human Resources support, don’t hesitate to get on touch on 07 5655 4047. We offer a free Introductory Call.
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HR Support – My business has none!
FY2019 is just around the corner and many businesses have either already commenced planning and budgeting or are about to start thinking about it. Have you thought about HR Support ?
It’s very common for small businesses to lack proper and compliant human resources practices, and it can seem overwhelming when thinking about where to start. The good thing is that it doesn’t take too much to get your HR basics in order. So, for those business owners who are ready to put some focus into HR to help decrease exposure and improve workplace productivity, below are three suggestions which are valuable whether your business has 1 or 100 employees.
1. Implement employment agreements for all employees (including casuals), or have an audit of your current employment agreements conducted to ensure your business is protected.
2. Have position descriptions drafted for all positions so that there is clarity about what each role does, where each role fits, and what each role’s purpose is within the business.
3. Get essential employment policies in place such as a strong Code of Conduct and a clear Discrimination and Harassment policy so that employees know what is expected of them and to reduce your business’ exposure to claims.
If you would like assistance with HR Support, Industryus HR specialises in all three areas and can make it a simple and pain free process. Contact us on 07 5655 4047 or click here for a free and no obligation quote, tailored to your business requirements.
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Why do I need workplace policies?
Workplace policies are an essential element of conducting business where the business has one or more employees.
Policies are written documents that clarify to all employees the expected standards of behaviour and performance. For example, a Code of Conduct will outline the standards of conduct that are required while working for the employer.
Below are some of the benefits of implementing sound policies:
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Where clear policies are in place, employees better understand what is acceptable and unacceptable in the workplace and this helps create a more informed and effective workforce.
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Workplace policies can also play an important role in the event an employee raises a legal dispute against the employer. For example, where the employer has a workplace policy about the disputed issue, the employer is likely to be in a stronger position before a court or tribunal as they will be able to prove what the workplace standard is and that the employee knew the standard expected.
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Policies can help to set the rules and guidelines for decision making for a range of standard workplace situations. For example, a Grievances Policy will set out the company process for complaint handling, and specifically who employees should contact for enquiries about the policy or who to contact to make a formal complaint. Having such guidelines in place reduces the need for employees to continually ask management the same questions as the answers will be outlined in the policy.
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Consistency. A positive workplace culture grows on the back of consistent and clear workplace practices. Workplaces with inconsistent processes and haphazard decision making often find the internal culture is toxic or unproductive as inconsistency breeds feelings of unfairness, distrust, unnecessary competition and frustration which all hinder good performance.
If you are interested in finding out more about workplace policies for your company, do not hesitate to book in a free, no obligation consultation with Industryus HR. We are able to tailor policy packages to suit individual business requirements. Call us on 07 5655 4047 or click here.
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Mistakes made by small business
Many small business owners might feel out of their depth when managing employee performance and conduct issues in the workplace. It’s not surprising, as the Fair Work Act is a daunting document even for many experienced human resources practitioners.
At Industryus HR, we specialise in realising great outcomes for employers but we are often engaged months after the performance problem first appeared and in many instances the action taken to date is not quite in alignment with Fair Work obligations. When this occurs we can assist with rectifying any concerns and setting up employers with compliant processes for better management of performance issues.
Here are four common mistakes that small business owners should be mindful of in the management of performance (and conduct) in the workplace.
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Performance issues that haven’t been addressed
We see many employers battling on for months, and sometimes years with a problem employee before taking any real action. The sooner action is commenced the sooner the issue will resolve, so employers who are burying their head in the sand about an issue are not doing themselves any favours. If you are not sure how to start, get some help from a HR professional so that you can confidently move forward.
2. Flimsy discussions
From time to time we are contacted by business owners who tell of their frustration about having had numerous discussions with an employee about an issue but the employee never shows any improvement. Often when we delve deeper however, it becomes apparent that these discussions haven’t been firm enough, and expectations and consequences for failure to improve were never discussed. A successful discussion about poor performance will cover the issue, why it is an issue, the expectations moving forward and what action might happen if the issue continues.
3. Nil documentation
Taking adequate file notes of performance discussions had with staff should be seen as an essential staff management function, but it is often overlooked. Without documentation such as file notes, it is much more difficult to prove that the employee was previously cautioned about their performance. No documentary evidence of previous discussions can equate to a greater employment relations risk for the employer if they ever need to defend their own actions.
4. On the spot warnings
This practice is one of the riskiest we see but is quite common. The employer becomes unhappy with the employee’s performance and decides they will issue a warning to the employee. So, the employer holds a meeting with the employee and issues a warning on the spot without considering the employee’s view of the situation. The problem with this scenario is that because natural justice has not occurred the employer is now exposed to a greater risk level if an unfair dismissal claim is made.
If you are a small business owner considering taking action against an employee, or have already and recognise some of the mistakes listed above, Industryus HR can assist to ensure Fair Work obligations are met and your risks are reduced. Call us on 07 5655 4047 or click here for a confidential discussion.
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