Understanding Your Rights and Responsibilities as an Employer

7/27/2019 Understanding Your Rights and Responsibilities as an Employer

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Understanding your Rights

and Responsibilities as anEmployer

Date:

Presented by:


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FAIR WORK LEGISLATIONFair Work Act 2009 + Regulations

(includes National Employment Standards)

INDUSTRIAL INSTRUMENTModern Award or Enterprise Agreement

INDIVIDUAL ARRANGEMENTS

Individual Flexibility Arrangementor Contract of Employment

Sources of Obligations


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The National Employment

Standards1

Maximum WeeklyHours

2

Right to RequestFlexible Working

Arrangements

3

Parental Leave

4

Annual Leave

5

Personal/Carers& Compassionate

Leave

6

CommunityService Leave

7

Long ServiceLeave

8

Public Holidays

9

Notice ofTermination andRedundancy Pay

10

Fair WorkInformationStatement


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Workshop Challenge: Leave

Cath is a full time employee.

She has worked for you for 6months. She has not taken a

day off in that time.

Cath calls before her shift totell you her son is ill and shecannot come in.

What sort of paid leave can

Cath access?

a) annual leave

b) personal/carers leave

c) none - she hasnt

worked her 12 months.


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Workshop Challenge: Leave

ANSWER

What sort of paid leave can Cath access?

a) annual leave

b) personal/carers leavec) none - she hasnt worked her 12 months.


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Industrial instruments

Modern Awards

cover most workplaces

industry and/or occupation-based

contain minimum entitlements

Enterprise Agreements

apply to specified workplaces

negotiated with employees must be approved by Fair Work Australia

override modern award (except base rate of pay)


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Other arrangements

Individual Flexibility Arrangements

can vary certain award / agreement terms

must be genuinely agreed between employer and

employee employee must be better off overall

Employment Contracts

can provide equivalent or more generous conditions

than NES and award / agreement

cannotundercut minimum entitlements.


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Wages


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Wages

Pay rates are set by the applicable modern award or

enterprise agreement

Changes to pay rates generally take effect on 1 Julyeach year.

Modern award wages are transitioning from the pre-

modern award to the modern award


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Pay slips & record-keeping


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Record-keeping

You need to keep employee records for each employeerelating to: Their employment

Pay

Overtime

Hours of work Leave

Superannuation contributions

Termination of employment

Other matters (IFAs and guarantees of annual earnings)

Records must be in English, accessible to employeesand Fair Work Inspectors and kept for 7 years.

Record-keeping templates can be downloaded for freefrom the Fair Work Ombudsman website.
http://www.fairwork.gov.au/resources/templates/pages/pay-slips-and-record-keeping.aspxhttp://www.fairwork.gov.au/resources/templates/pages/pay-slips-and-record-keeping.aspxhttp://www.fairwork.gov.au/resources/templates/pages/pay-slips-and-record-keeping.aspxhttp://www.fairwork.gov.au/resources/templates/pages/pay-slips-and-record-keeping.aspx


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Pay slips

Pay slips need to be issued within 1 working day of

payment

Pay slips can be issued electronically or in hard copy

Pay slips must contain certain information see the

Employee records and pay slips fact sheet for details

Pay slip templates can be downloaded for free from the

Fair Work Ombudsman website
http://www.fairwork.gov.au/resources/fact-sheets/employer-obligations/Pages/employee-records-and-pay-slips-fact-sheet.aspxhttp://www.fairwork.gov.au/resources/templates/pages/pay-slips-and-record-keeping.aspxhttp://www.fairwork.gov.au/resources/templates/pages/pay-slips-and-record-keeping.aspxhttp://www.fairwork.gov.au/resources/fact-sheets/employer-obligations/Pages/employee-records-and-pay-slips-fact-sheet.aspx


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Workshop Exercise: PayslipsDoes your payslip contain all of the following details?

Employer ABN For employees paid an hourly rate

the ordinary hourly rate of pay

the number of hours worked at that rate

the amount of payment at that rate

Employer name

Employee name

Date of payment (e.g. 19/06/09)

Period of payment (e.g. 04/06/09 18/06/09)

Gross amount of pay For employees paid an annual salary

the salary as at the last day in the period

Net amount of pay Any bonus, loading, allowance, penalty rate,

incentive-based payment or other separately

identifiable entitlements

Details of any deductions made Superannuation amounts paid or liable to be

paid and the name of the fund


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Engaging, Managing

& Terminating Staff


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Hiring Employees

Confirm:

the award/agreement that applies

the type of employment (full-time, part-time or casual)

any conditions re: type of employment/proposed hours

the employees classification (e.g. Level 1)

the correct rate of pay, loadings and allowances

Provide new employees with: the Fair Work Information Statement

an engagement letterconfirming their conditions of

employment (optional)
http://www.fairwork.gov.au/employment/fair-work-information-statement/Pages/default.aspxhttp://www.fairwork.gov.au/resources/templates/pages/employing-staff.aspxhttp://www.fairwork.gov.au/resources/templates/pages/employing-staff.aspxhttp://www.fairwork.gov.au/employment/fair-work-information-statement/Pages/default.aspx


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Engaging Contractors

Independent contractors are people who are self-

employed and contract their services to clients.

Independent contractors are not employees and have

different rights and obligations.

Misrepresenting or disguising an employee as anindependent contractor is known as sham contracting

and is against the law.


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Adverse Action

Adverse action is includes taking, threatening to take or

organising to take actions that:

dismiss the employee

injure the employee in his or her employment

alter the position of the employee to the employee's

prejudice

discriminate between the employee and other

employees

Different forms of adverse action apply to prospective

employees and independent contractors


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It is unlawful for an employer to take adverse action in

connection with the employee having:

1. workplace rights2. freedom of association/union rights and/or

engaging in lawful industrial activity

3. protected attributes / on discriminatory grounds

Protections from Adverse Action


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Handling workplace disputes

Communicate - take time to understand and discuss the

concerns. Keep detailed notes of discussions.

Check the applicable modern award/agreement toconfirm the process for handling disputes.

If unresolved, refer to an independent third party or Fair

Work Australia.

Download the Effective dispute resolution - Best Practice

Guide from the Fair Work Ombudsman website
http://www.fairwork.gov.au/resources/best-practice-guides/pages/effective-dispute-resolution.aspxhttp://www.fairwork.gov.au/resources/best-practice-guides/pages/effective-dispute-resolution.aspxhttp://www.fairwork.gov.au/resources/best-practice-guides/pages/effective-dispute-resolution.aspxhttp://www.fairwork.gov.au/resources/best-practice-guides/pages/effective-dispute-resolution.aspxhttp://www.fairwork.gov.au/resources/best-practice-guides/pages/effective-dispute-resolution.aspxhttp://www.fairwork.gov.au/resources/best-practice-guides/pages/effective-dispute-resolution.aspxhttp://www.fairwork.gov.au/resources/best-practice-guides/pages/effective-dispute-resolution.aspx


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Managing underperformance

Address underperformance promptly and appropriately

Follow any steps set out in the award / agreement orcontractand consider applicable policies or procedures

concerning performance management

Download the Managing Underperformance BestPractice Guide from the Fair Work Ombudsman website
http://www.fairwork.gov.au/resources/best-practice-guides/pages/managing-underperformance.aspxhttp://www.fairwork.gov.au/resources/best-practice-guides/pages/managing-underperformance.aspxhttp://www.fairwork.gov.au/resources/best-practice-guides/pages/managing-underperformance.aspxhttp://www.fairwork.gov.au/resources/best-practice-guides/pages/managing-underperformance.aspx


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Terminating employment

Provide written notice of termination of employment

Ensure the dismissal is fair

Ensure the dismissal is lawful

Check if redundancy entitlements apply

Keep records

Pay outstanding entitlements


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Workshop Challenge: Notice

Anthony has been workingfor you on a full-time basis

for 5 months.

You have decided toterminate his employment

due to ongoing performanceissues.

His contract stipulates a 6

month probation periodduring which he can beterminated without notice.

How much notice do you need

to provide Anthony?

a) None

b) 1 week

c) 4 weeks


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Workshop Challenge: Notice

ANSWER

How much notice do you need to provide Anthony?

a) None

b) 1 weekc) 4 weeks


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Things to avoid

Not paying penalties, allowances or overtime

Not paying for work trials, meetings or training

Offering goods or services instead of pay

Failing to provide pay slips

Unlawful discrimination

Sham contracting

Sham apprenticeships or trainee arrangements


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What to do if the FWO

contacts you

- Speak with your franchisor and seek advice if you need it

- Cooperate with the Fair Work Inspector produce

requested documents and records; ask questions if you

dont understand

- Seek to promptly resolve the complaint or any issues

raised in an audit


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Where to get help

Speak with your franchisor or employer association

Visit www.fairwork.gov.au for: Pay tools and Leave calculator

Fact Sheets and Best Practice Guides

Template Documents and Checklists

Industry Specific Web Pages

Live chat and email enquiries

Latest news and subscriptions services

Call the Fair Work Infoline 1313 94
http://www.fairwork.gov.au/http://www.fairwork.gov.au/pay/paycheckplus/pages/default.aspxhttp://www.fairwork.gov.au/leave/leave-calculator/pages/default.aspxhttp://www.fairwork.gov.au/resources/fact-sheets/pages/default.aspxhttp://www.fairwork.gov.au/resources/best-practice-guides/pages/default.aspxhttp://www.fairwork.gov.au/resources/templates/pages/default.aspxhttp://www.fairwork.gov.au/industries/pages/default.aspxhttp://www.fairwork.gov.au/contact-us/live-chat/pages/default.aspxhttp://www.fairwork.gov.au/contact-us/live-chat/pages/default.aspxhttp://www.fairwork.gov.au/industries/pages/default.aspxhttp://www.fairwork.gov.au/resources/templates/pages/default.aspxhttp://www.fairwork.gov.au/resources/best-practice-guides/pages/default.aspxhttp://www.fairwork.gov.au/resources/fact-sheets/pages/default.aspxhttp://www.fairwork.gov.au/leave/leave-calculator/pages/default.aspxhttp://www.fairwork.gov.au/pay/paycheckplus/pages/default.aspxhttp://www.fairwork.gov.au/