Understanding your Rights and

Responsibilities as an EmployerDate:

Presented by:

Sources of Obligations

The National Employment Standards

Workshop Challenge: Leave

Workshop Challenge: Leave

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)

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 – cannot undercut minimum entitlements.

Wages

Wages

• Pay rates are set by the applicable modern award or enterprise agreement

• Changes to pay rates generally take effect on 1 July each year.

• Modern award wages are transitioning from the pre-modern award to the modern award

Pay slips & record-keeping

Record-keeping• You need to keep employee records for each

employee relating 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 employees and Fair Work Inspectors and kept for 7 years.

• Record-keeping templates can be downloaded for free from the Fair Work Ombudsman website.

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

Workshop Exercise: Payslips

Does 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

Engaging, Managing & Terminating Staff

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 employee’s classification (e.g. Level 1) – the correct rate of pay, loadings and allowances

• Provide new employees with:– the Fair Work Information Statement– an engagement letter confirming their conditions of

employment (optional)

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 an independent contractor is known as ‘sham contracting’ and is against the law.

‘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

• It is unlawful for an employer to take adverse action in connection with the employee having:

1. workplace rights

2. freedom of association/union rights and/or engaging in lawful industrial activity

3. protected attributes / on discriminatory grounds

Protections from Adverse Action

Handling workplace disputes

• Communicate - take time to understand and discuss the concerns. Keep detailed notes of discussions.

• Check the applicable modern award/agreement to confirm 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

Managing underperformance

• Address underperformance promptly and appropriately

• Follow any steps set out in the award / agreement or contract and consider applicable policies or procedures concerning performance management

• Download the Managing Underperformance Best Practice Guide from the Fair Work Ombudsman website

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

Workshop Challenge: Notice

Workshop Challenge: Notice

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

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 don’t understand

- Seek to promptly resolve the complaint or any issues raised in an audit

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