Latest Legal Blogs : employment law
Workplace Policies and Procedures - The devil is in the detail
Your workforce is likely one of the most significant assets of your business. Payment of wages, salaries and entitlements are always a large part of your business expenditure. When workplace issues arise these can be both time consuming and costly to your business. Knowing the ‘rules’ goes a long way to avoiding employee confusion about what is expected of them in the workplace. It follows that employers must implement and communicate to staff clear, compliant and practical workplace policies and procedures. There is common misconception amongst business owners that workplace policies should seek to govern pretty well every activity in the workplace. We do not agree with this approach. How detailed a workplace policy may be is often dependent by the nature of the business and the practical and operational considerations of the business. A common sense and practical approach should always be utilised when preparing workplace policies and procedures.
Meeting your redundancy obligations
We are inviting you to be successful....elsewhere The publication of the General Ruling in 1987 saw the establishment of a test for redundancy as being: Where an employer has made a definite decision that he/she no longer wishes the job the employee has been doing to be done by anyone, and this is not due to the ordinary and customary turnover of labour, and that decision may lead to termination of employment... This test was introduced into the Fair Work Act 2009 (Cth) under the National Employment Standards in almost identical terms. The “he/she” lingo was dropped and the employer’s “wish” is now a “requirement”. In short, a redundancy is a genuine redundancy if the employer no longer requires the employee’s job to be performed by anyone because of changes in the operational requirements of the business and there is compliance with any consultation obligation contained in a modern award or enterprise agreement that applies. It will not be a genuine redundancy if it would have been reasonable in all the circumstances for the employee to be redeployed within the employer's business or any associated business. The operational requirements of the business may include a situation in which the employer has labour in excess of the requirements of the business, where the employer no longer wishes to have a particular job performed, or where the employer wishes to amalgamate jobs. It would also include a business restructure resulting in a position being abolished and the functions or some of them being given to another employee. The test for genuine redundancy takes out of action any argument about selection or procedural fairness (except for consultation), and establishes a complete defence without any wider regard to fairness. If the employer fails to consult with the award-level employee then it would not be a genuine redundancy. This does not automatically mean that the dismissal is unfair, just that it is at risk of being subject to an unfair dismissal claim or unlawful termination claim. Redeployment is also a key requirement for redundancy. It is imperative that the employer considers redeployment opportunities for that employee within not only the business, but related employer businesses. The employer must consider any other jobs to which it would have been reasonable in all the circumstances to redeploy the employee. There are a number of factors that must be considered in this regard. If you would like any further information please contact Brendan Gaeta on (07) 4771 5664 or email Brendan.gaeta@connollysuthers.com.au
Employee or Independent Contractor: Which one Applies?
The law recognises many relationships where one party performs work for another in exchange for payment. These relationships may include an employer/employee relationship or that of an independent contractor. Getting the classification correct is of the upmost importance. An employee generally works under the control and direction of the employer and the employment relationship is governed by the Fair Work Act. An independent contractor is operating their own business and is providing services to a business in exchange for a fee. There is no legislative provision which provide a conclusive definition of 'employment'. Rather, a workers status as either an employee or an independent contractor is determined by reference to common law principles and by looking at the facts of each situation. To distinguish a worker as either an employee or an independent contractor the relevant factors of the working relationship must be considered. These factors may include: The mode of remuneration for the worker (including whether income tax is deductable); The responsibility for the provision and maintenance of the equipment; Whether there is a right to delegate by the worker; The degree and nature of control exercised over the worker (such as hours, attendance at meetings, compliance with workplace policies etc.); The liability and insurance cover for the worker. There is no set number or combination of factors which determine whether the worker is to be deemed as an employee or an independent contractor. All factors must be considered in light of the circumstances of the business and the worker and the manner in which the work is performed. Employing someone as an independent contractor can often be cheaper and easier, but it can also carry considerable risk if it is not completed correctly or not completed for the right purposes. There are serious penalties that can apply if an employer misrepresents an employment relationship as an independent contracting arrangement. This includes a maximum penalty under the Fair Work Act of up to $54,000.00 per contravention. Penalties may also include a PAYG withholding penalty for failure to deduct the required tax and a superannuation guarantee charge made up of superannuation, interest and other fees. In addition to the penalties that may apply, the employer may need to pay all accrued (and unpaid) annual leave, superannuation and other employment entitlements for the entire duration of the employee’s employment. Having well prepared and carefully documented workplace contracts can not only reduce the possibility of disputes arising and the legal liability, but can give rise to a more productive and efficient workforce. Connolly Suthers can assist you with preparing an employment contract or contractor agreements. Give our firm Partner, Brendan Gaeta a call today on (07) 4771 5664.