18.11.08
23.7.08
Services: The Legal Framework & Compliance.
What act / award/ agreement applies? How do I get an agreement for my business? How can I be sure I am complying?
- Advice on legislation and industrial instruments relevant to employment and workplace industrial matters
- Ensuring compliance with legislation and industrial instruments, including OHS legislation
- Development, negotiation and processing of employment contracts and industrial instruments
- Dealing with industrial disputes (including representation in meetings and before industrial tribunals)
- Restructuring and Termination of employment- unfair dismissal claims
- Employee/subcontractor issues
Advice on legislation and industrial instruments relevant to employment and workplace industrial matters;
We can advise you on all of the following-- What award applies, if any?
- Is it a Federal or State award?
- Does an Act or other legislation apply (e.g. Annual Holidays Act (NSW), Long Service Leave Act (NSW), Superannuation Guarantee Administration Act (Cth) )?
- Is there an enterprise agreement or other registered industrial agreement which applies here?
- How do I find out what they say?
- Can I get a copy of the awards?
- What does it mean?
- My employee or a union is telling me that I have to pay a different rate or an allowance and I need to know whether that is correct.
- How do I find out what the right pay rates are?
What conditions apply to my employees (e.g. hours of work; overtime; leave for family reasons or parental leave)? - My employees are telling me they are entitled to an additional payment under the award and I don't think it means that at all- who's right?
- and many other questions…
A lot of questions that worry many employers. We can set your mind at rest. ]
Ensuring compliance with legislation and industrial instruments, including OHS legislation
[We will review your current procedures and employment records and tell you whether you are doing the right thing and, if not, what you must do to comply. If you are not doing the right thing you are exposed to any or all of- possible industrial disputes and action; claims to recover unpaid wages and entitlements (e.g. redundancy or unpaid leave); prosecution for breach of award or legislation; and fines.
Do you know that the maximum fines for breaches of the NSW Occupational Health & Safety Act are over $500,000 and that actual fines in excess of $100,000 are regularly imposed? Do you know that you must have formal OHS risk management and consultation arrangements in place? Did you know that if you are convicted of a breach of the OHS Act you will have a criminal record?
The consequences of non-compliance can be very costly and dealing with these problems can be very time-consuming. It is much easier and cheaper to sort out the problems in advance.
Development, negotiation and processing of employment contracts and industrial instruments; (awards, State and Federal collective agreements, Australian Workplace Agreements) covering employees at all levels;
Do you have documentation in place for every employee, including supervisory and management staff not covered by awards, which sets out their duties and the terms and conditions of their employment? Would you like to change the current conditions of employment so that your business can operate more flexibly and efficiently by creating arrangements that suit the way you operate (or would like to) and/or by freeing you from restrictions under the current awards?
If your current practices (e.g. overtime payments) do not comply with the award, exposing you to the risk of claims by employees or unions and prosecution for breach of award, would you like to have these practices formalised and made legal via an approved enterprise agreement? Would you like to have the flexibility to customise employment for each employee (or group of employees) via an Australian Workplace Agreement developed to meet the needs of your business and recognise the needs and contributions of individual employees?
Do you need an employment contract for a key employee or manager? Do you have confidential information (e.g. customer lists; manufacturing processes; trade secrets) that you need to protect? Do you want to protect your business from unfair competition from former employees?
We can help you develop agreements and contract documents that will achieve these objectives. We can help you with all stages of the development and implementation of contracts, awards and agreements, including
- identifying issues and developing management's agenda for change and negotiation;
- drafting of negotiating documents and agreements;
- assistance in negotiations with employees and/or unions;
- assistance and representation in the certification/ratification process for the finished award or agreement;
- assistance with the implementation of your award or agreement; and
- assistance with resolution of any disputes that arise about the interpretation or application of the award or agreement. ]
Dealing with industrial disputes (including representation in meetings and before industrial tribunals);
IIf you have an actual or threatened industrial dispute, with or without industrial action (e.g. strikes or work bans), we can help by advice on the legal and practical aspects of dealing with the dispute. This covers both the immediate response (such as reorganisation of work, any necessary action with respect to staff who are not taking action but whose work is affected by industrial action, action to have industrial action cease, notification of the dispute to the relevant Industrial Commission if necessary) and negotiations with employees and unions to resolve the dispute.
In addition to advising you, we can lead negotiations on your behalf with employees and unions and can also appear as your representative in either Federal or State industrial tribunals.
Restructuring and termination of employment (unfair dismissal claims);
The whole area of termination of employment is one which can be fraught with difficulty and is the subject of a great deal of fear and loathing on the part of employers. However, while there is no complete answer, terminations can be dealt with effectively and with minimal risk and cost to the employer. Success requires planning and careful groundwork.
If you are faced with a major restructuring exercise, we can help you work through restructuring and redundancy situations. This includes: reviewing options such as retraining and redeployment (where possible), making decisions on timing, planning for the necessary consultation with employees and unions, developing and implementing the selection process for those to be made redundant, calculating termination entitlements, and preparing the required documentation.
Where the proposed termination is the result of disciplinary or performance related issues, we can advise and assist with the process leading up to termination, counselling, alternatives to termination, calculation of entitlements and preparation of the necessary documentation (such as warning letters, notice of termination etc).
If you are the subject of an unfair dismissal claim we can advise on handling it. We can represent you in negotiations and industrial commission proceedings.
Better yet, we can provide you with training in the procedures you need to apply to ensure that a decision to terminate will be found to be just, fair and reasonable if challenged. This reduces costs and will also reduce the likelihood of speculative claims.
Employee/subcontractor issues;
The status of certain people engaged to carry out work in a business is often a difficult area: will the law regard them as employees or as independent contractors? Such issues arise particularly in the construction, cleaning and some other service industries.
A great deal hangs on the answer- workers compensation obligations, superannuation contributions, award coverage and entitlements, method of payment, to name only some of the major issues. A failure to correctly classify these people can lead to serious and costly consequences, including claims for back payment of workers compensation premiums, superannuation, wages and allowances, entitlements to accrued leave and/or redundancy entitlements on termination. It can also lead to prosecution for breach of award.
The changes to the tax system in 2000, with the introduction of the"alienation of personal services income" provisions add a further layer of complexity, since they require that 'contractors' be taxed as PAYG employees if the income is principally earned from the labour of one person and more than 80% of that income in any financial year is derived from a single 'employer' (even if the contractors work through a company or partnership). In that situation the 'contractor' also loses the right to claim many business deductions and can claim only those available to an employee.
Many business owners and managers do not understand these issues well and enter into 'contracting' arrangements when the 'contractor' is really an employee. While this may appear to be convenient and have advantages for both parties, this is often illusory. Many businesses come to grief and are forced to pay out large amounts of money when 'contractors' are found to be, at law, employees. In some cases, large liabilities for superannuation contributions going back up to 6 years have resulted in those businesses being forced into insolvency.
We can review your practices for engagement of contractors and advise you whether you are at risk and what to do to reduce or eliminate the risk. We can also advise you on what the options are to resolve situations where a person may prefer to remain a contractor but should be an employee.
We can also assist your business with disputes regarding a person's status as a contractor or employee and with claims for wages and entitlements in respect of contractors.
Such disputes can be very difficult to deal with and taking early action to set the engagement up correctly in the first place can avoid the problem- and the attendant costs- altogether.