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We’ll get started. So what I’ve got for the group tonight is essentially a, what I would call a HR & Workplace Relations update. So On Demand HR, we’re in the workplace relations space, it’s a bit of a niche space where we sort of operate between, I guess, your employment lawyers and I guess you could say your HR consultants. And we are very much focused on the law side of HR. We operate as a paid agent in the Fair Work Commission. I’ve personally represented clients in about 150 cases since 2010 as a paid agent. I’ve run everything from our conciliations to evidence preparation to hearing so we have a very unique understanding, from a consulting perspective on HR & Workplace Relations matters. But most of the HR consulting organizations or workplace relations consultants, wouldn’t have the same kind of experiences that we’ve had, a lot of others do operate on that kind of theory of, well, this is what I’ve been told by lawyers, or this is what I’ve been, you know, this is how I understand it works. But without actually any real tribunal experience.

I’ll get started with tonights presentation. And as I said, feel free to come in at any time and, and basically, we’ll answer any questions as we go along. Let’s Let’s start with a bit of a look at the, I guess some of the key developments in the past, particularly the last 12 months, let’s say since the start of COVID. So we’re seeing, I guess, challenges in two key areas of workplace relations. We’ve seen legislative challenges and new things that businesses are being expected to comply with, along with external challenges, such as things like COVID-19, floods, things like vaccinations, things like the end of JobKeeper, obviously, which just recently finished for some businesses, and all of that coupling with all that combined, creating an environment where businesses have been constantly looking at restructuring and the possibility of redundancy.

So I really want to talk about tonight, both of those key things. So the legislative challenges, and the external challenges that, you know, a number of small and medium businesses are facing in their day to day operations in their day to day dealings with their employees. So before I get into that, though, I wanted to kind of give everyone again, for those who may not have a great deal of knowledge on these particular subject areas, I wanted to kind of just get back to some very basics of you know, how Employment Standards generally work, and what is the basis for employees and their employment conditions. So I guess I’d like you to look at the pyramid that I’ve created on the right, and the pyramid really explains the kind of hierarchy of, I guess employment conditions and how things generally work with employer and employee arrangement.

So at the very, very core of our national Workplace Relations system is what we call the National Employment Standards, that is the 10 simple National Employment Standards, which I won’t go through them. But that is basically available to all full time and part time employees, there is certain parts of the National Employment Standards that are not available to casuals, but certainly for all full time, part time employees the National Employment Standards apply to all of those permanent employees. So sitting above that, so so let’s assume that we have an employee who’s award free, which, believe it or not, is not actually that common, a lot of people think that their employees are award free, and they’re not actually award free. Most award free occupations are occupations that are generally very, very senior management that fall above the scope of any potential industry or occupational awards. So but let’s assume for the purposes of this first first layer of the pyramid, a person’s award free, they would be entitled to at the very least, the standards that are in the National Employment Standards.

We then go a level above that we look at what are enterprise agreements. So these are agreements that are collectively reached between an employer and either the whole workforce or a group of its employees on the terms and conditions of employment. Now, in most small to medium businesses, enterprise agreements are not that common. They’re probably more common in your larger businesses. They’re more common in your construction fields, typically, where you know, they’re trying to get enterprise agreements in place to avoid disruption from the union or because the principal contractor has been pulled out under pressure to have only EBA based contractors to do particular types of work.

So think of the enterprise agreements as kind of a second layer of the pyramid. Although in many cases, organizations may not even have an enterprise agreement, in most cases, they in fact won’t. So enterprise agreements will apply to some but but not most businesses will look at the third layer of the pyramid.

And the third layer of the pyramid is the modern awards. So this is the 100 and I think it’s 120 something modern awards, I don’t know the exact count as we speak. But these modern awards cover essentially industries and occupations, various different industries and occupations and set the terms and conditions of employment for that particular industry. So think of modern awards as being things that are in addition to the National Employment Standards. In the situation where no EBA is in place, you typically will be relying on one or the other, you’ll be relying on either an enterprise agreement in that workplace, or you’ll be relying on the Modern Award. So one layer of the pyramid will will not exist for a particular type of employee.

Then sitting above your modern awards, you then have your employment contracts essentially. So there is and what we’ll get into in tonight’s presentation is that there is various ways that employment contracts need to be considered and constructed. What we see far too often is situations where, and quite funny, we even see lawyers producing content for their clients, which is kind of one size fits all employment contracts, which do not take into account at all the Modern Award that applies the rules for Annualized Salary arrangements under that model award, and the various other obligations that may exist in that modern award. And we’ll talk about what some of those obligations are tonight, and why and how we look at that in the context of a workplace relations review.

So I guess at a high level for tonight, what I’d like to cover is the legislative challenges, the external challenges. And then, you know, really talk about how that fits in the layers of the pyramid that we refer to there as a very foundation for Workplace Relations system in that we have in Australia.

On to our next slide, which really covers, which covers recent changes around the definition of casual employment. I’ll start with this notion of casual employment. So this is actually very recent change to the Fair Work Act. And this was something that was part of the recent reforms that largely been driven by the Minister Christian Porter, and what the whole design of these reforms is geared at doing is removing some of the uncertainty from casual employment that we’ve seen some of the recent decisions with, with WorkPac and Skene sorry, Rossato and WorkPac should I say. So what we’ve what we’ve got here now is a definition of a casual employee is based now on the original offer, made to the employee without taking into account any subsequent conduct of the parties.

So in the past, what the commission would kind of look at and what these cases looked at was the conduct of the parties. What the new reforms essentially say is that now so long as there’s a very clear intent contractually on what the employment is intended to be, then that is given to be casual employment. And, look, there are still other obligations that do apply, there is an obligation to offer casual conversion to a casual employee after 12 months, and there is the residual right for them to request that casual conversion. But that doesn’t change the fact that they are, for all intents purposes, a casual employee until such time as either a conversion is enacted, or and in most cases, that conversion is not not even sought by the employee. And I’ll get into some of the reasons why that’s the case.

But ultimately, the biggest shift is around the on paper relationship between the parties as trumping the what’s happening in practice relationship between the parties. So that’s a significant change. And again, we’ll talk a little bit later later about how businesses can now start to think about that in the context of their workplace relations affairs, particularly when they’re employing a lot of casuals. So the other thing that the reforms now crystallize is the requirement for businesses to issue what is called a casual employment information sheet. And for those who are familiar with Fair Work Information Statement, it will be a similar looking document to that that will go to the rights of casual employees in these circumstances. So obviously, if there is casual employment information sheets, and casuals will be required to see this, we should probably talk about things like casual conversion and so on, so forth.

The other thing that these new reforms deal with is they deal with the ability to make orders relating to casual loading amounts if the employees is found not to be a casual employee. So for those who follow the Skene & WorkPac and the Rossato & WorkPac cases. One of the biggest criticisms of those cases was that these employees were effectively allowed to double dip. They received their casual loadings during their employment. And the court didn’t make any requirement for them to offset those loadings against the the annual leave they were eventually paid. Now, look, I wouldn’t be losing too much sleep over those two particular cases, because they were very, very unique set of circumstances. But what the reforms now do is that if there’s any doubt about the, you know, the employment, it allows for the ability to for there to be orders for casual loadings to offset, you know, when there’s a situation where the, the employment is found to be permanent. And really, that should only happen now, if the contractual documents are bad. Because if you put together decent contractual documents now that deal with the new requirements in the reforms, you should be very comfortably be able to establish with confidence, casual employment.

So I hope that kind of gives you a little bit of an overview and just flowing on from that, in terms of what we mean by a firm and advanced commitment. So essentially, the the employer, or the whole notion is now there’s no firm advance commitment to ongoing work. And the four factors that are really looked at is that you know, whether the employer can elect to offer work, and whether the person can elect to accept or reject work. So, again, the first thing that should be clear to all casual employees deom here on in is that they can’t accept or reject work, if they can’t accept or reject work well, it’s not really casual employment. Whether the person will work only as required is another consideration, whether the employment is described as casual employment, we covered that in the last slide. And whether the person will be entitled to a casual learning or specific rate for casuals under the terms of the offer or Fair Work instrument.

So again, making clear that there is a casual loading, as part of the casual employment arrangement would go quite quite far in establishing that, clearly, there’s a casual employment arrangement on foot. And that is the basis upon which the parties have decided to enter into the engagement. So that is the rule change around the Fair Work Act, and what we can expect to see going forward. And it does provide some certainty, particularly in a number of industries, you know, certainly the mining industry, which is where this whole thing started around WorkPac & Skene, and Rossato & Skene, but also in many other industries, where there’s been a, you know, a possible concern about a knock on effect. So, yes, I hope that gives you a bit of an overview as to casual employment.

I want to talk about real impacts, and some final recommendations on that particular part of the subject. So first of all, I think it’s important to know people who are worried about conversion, conversion obligations already existed under most modern awards, as either being the ability for casuals to convert after six months or after 12 months. Now, look, most casuals don’t choose to convert any way. And the reason they don’t choose to convert is, and obviously, I’m appreciate people around the room, enjoy your maths. But if you do the numbers, 25% loading doesn’t equal the costs of the leave. So 25% loading is often higher than the cost of the leave. And people think of this as real, what’s going in my take home pay effect. And when they look at, okay, I can lose 25% of my pay, go on to permanent employment. And I can get the benefits of leave, they most often look at it and weigh it up and go. No, thanks. I’ll say as a casual employee, I’m still getting regular and systematic work. I’m not worried about job security. And this is another you know, I think we hear in the in the, you know, the political debate about Well, yeah, there’s this all this job insecurity and that, you know, employers are abusing and all that stuff. I mean, there’s there’s so much there is the competitiveness in the labor market right now is as competitive as it’s ever been. And even even with COVID impacting on some industries. The majority of industries are humming along beautifully at the moment. And we are seeing across the wide range of clients that we’re dealing with competition for people in various areas is still at really very close to all time highs. So again, casual is quite comfortable with their 25% loadings and comfortable their so called insecure employment. And, and a lot, not a lot of them are seeking to convert. In fact, in the last 11 years of me consulting to the best part of 450 clients, I think we’ve dealt with conversion about three times. So it just shows you how rare it is that those things will actually be taken up by casuals and really these these, these reforms don’t really change any of that. So that is, I guess some of the real impacts of this and how much it’s actually plays out in practice.

I think the three recommendations I’m going to make to all of you either in your own practices or you know with your clients is to clearly have casual conversion causes in your employment contracts because that will ultimately make it clear that they have the obligation to convert will have not the obligation to have the right to convert. And ultimately, if they decide to exercise that and that’s, that’s a matter for them. And it’s a good way of also notifying them upfront that they have that right added at a future time. The second thing is that, ultimately clearly identifying the nature of the employment in the contracts as being casual employment. So that’s important for the purposes of meeting the definitions that we spoke about in the previous slide. And the other thing is clearly identifying the casual loadings in those contracts and in those payslips, so, again, if you’ve got a casual employee who’s paid, you know, $30 an hour, and it’s $24 an hour plus a 25%, casual loading, the recommendation is that we split those for the purposes of payroll and for the purposes of payslips, because that clearly shows a pattern that the casual employment has been exactly that. And there’s been a loading, you know, as part of that casual employment arrangement, where where there can be sticky situations for employers will just simply say, There’s $30 an hour, there’s no clear reference to casual employment. And then there’s ambiguity about was the employment part time was it casual, where’s the leave accruals? Those sorts of situations. So I hope that kind of makes sense on the whole notion of casual employment.

All right, well, I’ll move on then to the annualized wage arrangements. So let me just click ahead to the next, the next slide. So this is another obligation that came into play in early 2020, in March 2020, as part of changes to the modern awards, so it doesn’t exist in all awards, but it does exist in 22 of the modern awards. And those modern awards have particularly wide coverage, and we’ll talk about which ones they are in particular. But what these anualised wage arrangements or Annualized Salary arrangements clauses in the Modern Award do, is they affect the full time employees who are paid an annual wage or annual salary under one of the impacted awards. And what,and depending upon the award, the annualized wage arrangement can include things such as minimum wages, allowances, overtime penalty rates, and leave learning, the typical types of things that you see rolled up into salary arrangements.

So this, these provisions do capture a lot of salary arrangements, and we’ll get onto what some of those obligations might be. So the first thing that the employer needs to do is ensure that the employee’s annual wage is high enough to cover the award entitlements that they’ve included in the arrangements, obviously can’t be less than what they would have earned over the year over the period of time. But the award goes further than that, and talks about which classifications in some cases can be paid an annual wage, what entitlements can be included in the annual wage, and whether they need to agree to the arrangement, or whether it’s a supplementary document to some sort of employment contract that may already exist. So as each award is different, important, it’s important for you to understand what the annual wage arrangement clause in your award may be.

And I’ll go to exactly that right now. So I’m going to show the group, the awards that are impacted by this annualized wage arrangement change. So you can see there a list of I think it’s 16, plus another, another four below. And there’s a couple more to come. So we’ve got the banking, finance and insurance award, which covers a pretty wide range of employers and their employees. So those awards now have annualized wage or annualised salary arrangements. If you’ve got people on salaries in that award, then there are additional obligations that apply. It’s not simply good enough to just issue an employment agreement or a contract and say, That’s okay, this has been written by a lawyer, we’ve met our requirements, and just ignore that the requirements under the award even exist. So banking finance insurance award is one that has very wide coverage. And may, you know, certainly there may be people in the room that that have employees or you know, know of clients have employees that deal with that the clerks award is probably the biggest one in terms of broad sweeping coverage of a wide range of administration and clerical employees. So what that requires, again, is a whole range of additional obligations on if you have a salary and the person is covered by the clerk’s award, then these are the additional things that need to be done and we’ll get into what exactly that is in the next slide. There’s a few other awards there that you know, probably that that nonetheless apply but have less of an impact. So you’ve got the Pharmacy award, which covers a lot of pharmacies, you’ve got the mining award there obviously covers quite a lot as well. You’ve got local government, you’ve got manufacturing, you’ve got telecommunications and there’s a number of others there. And that we expect, there’s going to be further provisions and changes to two other key awards down the bottom, which, in particular, the restaurant Award and the hospitality award, which have very broad, sweeping coverage in the restaurant sector, and obviously, in the hospitality sector. So if you see one of those awards that applies to any of the businesses that you deal with directly or indirectly, it should be a red flag, that there’s something that needs to be looked at in respect to any annualized wage arrangements. So that’s the awards that are covered.

And then we get into talking about, okay, what are the obligations. So, the first, first and foremost, the first obligation is that the there must be an agreement in writing, which includes the annual wage paid, what award entitlements are included, but but how the wage has been calculated, and the outer limit of penalty hours within a pay period or roster cycle without extra payments. So the first part of that long sentence is, okay, we’ve seen that a lot before in contracts, you know, it says what the salary covers and so on. So that part of it, you know, it’s not that scary. The second part of it is the part that typically businesses haven’t addressed, and that is the how the wage or salary is being calculated, what is the outer limit of the penalty hours within a pay period or roster cycle without extra payments, so that includes things like overtime, Saturday penalties and so, and obviously, it’s going to be more of a problem, the closer the salary is to the award levels, the less flexibility and room to move there is going to be in these types of Annualized Salary arrangements.

The second obligation is and this is an obligation that’s always existed, it’s just something that’s reiterated in the annualised wage arrangements is starting finishing times and any unpaid break. So any sensible employer would be recording those things, purely and simply because if there’s any dispute in the future, you have something to rely upon, for the purposes of dealing with any underpayment claims, or any, you know, unpaid overtime claims, or whatever, whatever it might be. So that’s the second obligation, not a new obligation in this particular situation.

The other thing that it does, the other slight change in the terminology around this thing is that it requires the employee to acknowledge the number of hours worked at the end of each pay period or roster cycle. So, in practice, if an employee is submitting a timesheet, that would be good enough. If an employee is filling out a timesheet without an employee’s kind of some sort of contribution or consent to that, that could be a potential problem area. There’s numerous other ways of keeping time & wages records, it could be, you know, bundy card, it could be a finger scan, or it could be a timesheet, it could also be even just a log in and log off computer style situation or log in log off alarm situation, or a system log in log off. There’s various different things over the years, I’ve talked about with clients as to how you can log hours effectively, but and look in every business wants to do all these things different, some don’t want to have the notion of, you know, employees watching the clock, so to speak, and they culturally don’t want to have that look and feel about it, while others, you know, are quite comfortable with with pushing those things, you know, very firmly at their employee. So, again, that, again, not a new obligation, but you’re certainly there’s there’s more of an emphasis now on the employee acknowledging the hours that they worked in any given pay period.

So basically, the other thing is that the reconciliation of employees annual wages against award entitlements. So the key thing around that is that every 12 months after the agreement commences when the arrangement ends or when the employment ends. So it’s a little unclear in the model awards as to how I should say, a little unclear with the Fair Work Ombudsman as to how strictly they will enforce this 12 month reconciliation. So what you’re supposed to do in these annualized wage situations is reconcile how much the employee is earned, as the salary versus what they would have earned over 12 months if we followed the award conditions. So in that situation, what I would say is that where there’s a situation where, there’s there’s uncertainty around that or there’s a shortfall, then there may bethe obligations to make additional payments in those circumstances. So and again, that’s gonna that’s going to happen in situations where the salary is going to be very borderline with the with the award level. So that is a bit about the obligations.

And I just sort of wanted to round this, this particular point out with why why is this significant? So why this is significant is the first 12 months reconciliation was March 2021. Now, we haven’t really heard anything from FWO yet about what industries they might target, What award they might target. Bearing in mind there’s only 22 of them. But we have heard from FWO that the priorities in 2021 will be underpayment of staff in the corporate sector, which could be admin banking, finance most definitely have become a significant issue of public concern. And we see it, you know, large employers in the past two years that have had underpayment of wages, it’s it’s it’s staggering if these large businesses can’t comply. Well, how can smaller to mediums be expected to to meet the requirements of our workplace relations system.

So nonetheless, the Fair Work Ombudsman, one after another, they seem determined to make a big name for themselves. And they seem to turn to, you know, get on the front of the media headlines by slapping down a penalty or a fine on some business or cracking down on some sort of underpayment. So, again, expect that there will be compliance enforced, we just don’t know to what extent. Obviously, there was a crackdown in 19/20, around wage theft, there was a there was actually a serious case around, Made Establishment with, you know, significant penalties there. As you can see in them in the fourth dot point. There is most recently an increased compliance requirement for small to medium business around the penalties. And we’ll get onto that on the next slides. And look, probably the, the main thing I would be saying to businesses out of this is just review your affairs just review, you know, review your workplace relations situation, understand what awards apply to the employees in my business, or the employees in my clients business, if the client or the business doesn’t know those things, clearly and has confidence in what those things are, then I’d suggest that, you know, it’s probably time to address that particular issue, because a failure to address that, you know, could result in a whole bunch of unintended consequences as we’ve kind of gone through in today’s presentation. So that’s a bit about the annual wage arrangements Annualized Salary arrangements. I said, in essence, really the Annualized Salary obligations in the most part and probably supplement your employment contract arrangement. So you can still have your existing employment contract arrangements provided obviously, they’re not in breach of the award, in terms of rates and so on. But the annualized wage arrangements, annual salary arrangements create additional obligations that need to be considered and met. And I could talk all day about how those things can be met. But that that can be very unique to each individual business and how they deal with those particular things.

So I’ll move on to mandatory classifications. So this is another thing that we’ve seen in a number of awards in the past year, where there’s now a requirement in some awards, not all awards. And this is why it’s so important to know what award covers the the organization I’m dealing with, to notify employees in writing of their classification levels. And there can be two types of provisions here, there can be blanket wide, or award wide requirements to have the classification level stipulated. Or there could be this other box, which is it only applies to a particular type of employment. So, yeah, and again, that varies from awards or awards.

So to take the clerk’s private sector award as an example, because that’s a very wide coverage award requires all employees to be advised of their classification level under the award. And then this kind of teirs into the analised or ties into the annualised salary provisions of the award, making it very easy for the employee to compare their wage against the award minimums, and well, am I getting enough extra money in my salary for the overtime I am being expected to work? So what you’ll probably see in a lot of these awards, and probably more so as time goes on, is this linkage between classifications being required to be advised against the Annualized Salary arrangement that sits in that award as well.

So to take a different example, the manufacturing award only requires management classification to casuals. So that’s where the award is, right now, the tricky thing about these modern awards, and this is where it’s, you know, very different than system we had some 11 years ago or some 12 years ago now, is that these modern awards continue to kind of evolve and update and change. And, you know, even even as a consulting business with six consultants, we find it difficult, ourselves sometimes to keep on top of them. We try to just keep on top of the key things that need to be communicated out to clients because, you know, sometimes you’ll think you’re across it, and then there’s a change in you try and try and act on those changes as quickly as you can, FWO do a whole bunch of update services that we subscribe to, but at the end of the day, there is 120 odd awards. So you know, some some awards will impact your clients more than others, some will have very little impact. So to be across all it’s often quite difficult. So, again, I think that’s always good for our business at any given point in time to review their affairs and then look at reviewing their phase again, periodically. So, yeah, the compliance consideration is very award specific in this regard. And, you know, it’s always something we consider when we conduct our workplace relations reviews for either new or existing clients. So yeah, important to understand.

Just back on some of those penalties. So I’ll move on to, I guess, compliance and penalties that we’re now seeing as part of these changes. So the Small Business fines now for under payments. And again, I’m not saying this is I’m not going to, you know, come in here with a whole bunch of scare tactics and say that, you know, every business is going to be fined for an underpayment. The majority, the large majority of businesses I’ve dealt with in underpayments haven’t been fined for them. So where there’s been no non compliance, but you know, sort of in good faith arrangements, then, you know, there might be, there might be some sort of, you know, requirements for underpayments to be addressed. But there has been a number of serious cases where there’s been fines or under payments. And those small business fines have now gone up from 66 to 99,000. So Medium business it’s either two times the benefit obtained, or 99,000, whichever is the higher. Large businesses, it can be three times the benefit obtained or 666,000, whichever is the higher. The 50% increase in binds or Sham contracting arrangements under the Fair Work Act. So that’s a three, five, something 352 or something along those lines, and severe cases can attract up to four years jail time. So that’s another change that this they’re sort of trying to push in as criminalizing wage theft and things like that. Now will we see someone do jail time? probably eventually there’ll be someone in the corporate sector that will be jailed as a result of an underpayment. Will we see it all the time? Probably not. Will it be used as a scare tactic by lawyers to broker settlements on behalf of their individuals who are aggrieved about their underpayments? Probably.

So all of those things are going to be in play in the time ahead. I’m not sure why these reforms make any sense, particularly when you know, businesses are, you could say, you know, there’s not really a great deal of good reason for more regulation at this point. But it seems to me to be balanced off against perhaps some of the gains in, you know, casual employment, and so on. So, in any case, the two other things I wanted to quickly cover on this slide is that there has been some awards now that will have additional flexibilities for part time employees. And the other thing that is available to part time employees, to other employees in awards now is the ability to change duties and the location of work. But again, most of those things are done by agreement anyway, so not not significant other changes in that regard. And so the main thing to take out of this slide will probably be around the compliance issues.

I will move on to vaccinations So I’m going into now kind of some of the external factors. So looking at, you know, some of the things that your clients or your businesses might be confronted with this year. There’s yet to be any precedent in the courts around this notion of vaccination for COVID-19, specifically. So it’s going to be very, very interesting space. And there will be cases on this this year, I can almost guarantee it. There is some legal experts out there who suggest it may be fair and reasonable. And maybe some of them go further to suggest employers might have a positive obligation to protect employees and customers. But should a business go anything further than what the government requires them to do? Our position at the moment in advising our clients is no, that follow the government guidelines, and probably no more than that, at this point. Some may take a specific view that they want to take things further with that. But if you’re taking things further with that, than that, you may also carry some of the risks associated with vaccination. So if you either carry risks associated with lack of vaccination or carry risk associated with vaccination and possible adverse effects of that, so I think the sensible middle ground is to follow any industry requirements, the government’s in the state implement. So that would be my, I guess, an overarching principle on how businesses I think should think about this, this this concept.

There’s a very interesting case actually last year. Is Arnold v Goodstart. And this case was actually not related to COVID vaccination, but was related to flu vaccination. And what this case went to was it went to a childcare worker who lodged an unfair dismissal claim for refusing to receive a flu vaccination and was ultimately dismissed from their employment. Now, the disappointing thing about this particular case is that the employee actually filed out of time, so you have 21 days to file. So ironically, despite the case, it would have been a fantastic test case for this issue of COVID-19. But unfortunately, the employee filed out of time. And the way the federal commission looks at these things generally, is that if you file if you don’t file in the 21 days, if you file on the 22nd day, it’s not going to be accepted. There’s very, very few matters that are now accepted out of time, the bad old days and the you know, the 2000s under the old Workplace Relations Act and the relevant state, the state industrial relations commission, you could fall out of time and come up with any you know, Bs excuse you want to, to basically commence your unfair dismissal claim. But ultimately now we see the commission having a very strict position on those timeframes. But what the Deputy President, Asbury said in this particular case, in the in dismissing the case on procedural grounds, was that both sides of the argument were at least equally arguable. So I think what they are signaling there is that an employer who takes the position that they require an employee to vaccinate, will have a decent argument at the very least in the commission. And you could even make take the position that a flu vaccination is theoretically a lower level vaccination, when you compare it to COVID.

So really, you look at COVID now, you could make the argument as an employer that I’m protecting my employees more with a COVID vaccination and their customers and our other employees, then I would be with a flu vaccine in 2020. And the reason I made that comparison is because if the if the case was equally arguable, based on this set of facts, I think it may be even more arguable on that set of facts. And we will see one this year, there will be a case this year, mark my words where someone is dismissed for not taking the COVID vaccination wheather it be this year or next year, depending on when the roll out happens, of course. And there will be a lots of different reasons put for why employees are not taking the vaccination, whether it’s medical, whether it’s allergies, whether it’s religious reasons. It could even be political reasons, people may even take the view that politically, I’m opposed to this, you know, broad vaccination mantra, and that I’m not going to comply with it. So it’ll be very interesting to see how all this plays out. I think just the common sense position for now is to just follow the government guidelines, probably nothing more than that. And for those who want to be creative beyond that, well, I guess you probably do so at your own risk to an extent. So yeah, we obviously there has been we can’t ignore it has been in some countries, some adverse effects or reactions to the vaccination. So again, that has to be also considered in all of this. So that is a bit about vaccinations something to think about for the group. Again, in any dealings you might have, or clients on this front.

The other thing I was going to cover was the end of JobKeeper and restructuring. So obviously, It concluded on the 28th of March. I guess this is very much a case of now with the with the government welfare coming off, we are going to see the businesses that have been swimming naked so to speak, we’ll see how they survive in this post job keeper environment. There may be a number of workplaces that still can’t operate at full capacity. And that’s going to force businesses to either restructure and make redundancies or to formalize revised arrangements going forward with their employees on new employment contracts. So there’s really those couple of choices for the ones that haven’t come back to normal. It’s restructure or agree on new arrangements. So it’s going to be look a, you know, highly charged political environment. We have the Fair Work Commissioner, probably looking at some unfair dismissals. And we’ve got we’ve got we’ve got a redundancy webinar, but you’re more than welcome to have a look at our website, which goes through this in in great amount of detail. I’ll cover the very basics of redundancy in my next slide. And just for those who never encountered a redundancy before and think that redundancy can just simply be a, you know, a one horse meeting or one on one meeting termination. I would certainly advise the group against any of that thinking or against any of that logic, section 389 of the Fair Work Act requires that there is a consultation meeting or that there’s consultation prior to termination. And it’s very clear that consultation of just telling someone what the decision is, is not good enough. And that and that, and that will ultimately fail.

So very quickly, and I’m conscious of the time the group has here. But basically, the first step that we always advise to clients is to have an initial constant consultation meeting. That’s where we tell a person who may be made redundant, that we’re restructuring and that your current position will be affected. It talks about the business case for the restructure, and then puts forward any alternative jobs that the business may have as a result of the restructure. So we also recommend a letter that follows that initial meeting. So think of this initial meeting as kind of day one initial meeting, initial letter to follow confirming the information about the restructure, we then would recommend what we call a consultation period of seven days. And during that time the parties are considering the business is considering what other alternative options might I have, rather than making people redundant, the employee might be considering what options are currently on the table for me to stay employed, and how I feel about those options. And depending on what the options are, they might be exactly like for like they might be quite different. Some might trigger redundancy, some might not if they’re accepted or declined.

So we accept we recommend a client observe at least a period of seven days to allow this consultation to occur. If there’s no other interviews or processes that need to happen, then we would move to a second end or final meeting, which confirms that the person potentially is made redundant, that there’s no other alternative roles other than the ones that were already identified, and basically confirms the decision. And then following that second meeting, we’d recommend the second letter be sent, confirming those outcomes. And confirming anything else around you know whether the business is offering any outplacement any counseling services or anything like that.

So I want just the group to take away from this that that is what I’d recommend is a very what we recommend is a very basic and standard procedure for redundancy. Doing anything less than that or doing redundancies in one meeting is just it’s really just asking for trouble you, you’re going to inevitably fail in consultation. And then you may as well just turn up to the commission with the checkbook open, because ultimately, if you’re not consulting, you’re failing in 389 them doesn’t matter how good your business reason is, if you’ve failed, procedurally, there will be some element of compensation one way or another. And there’s just a question of how much is that that’s going to be so we recommend that again, you follow at least this sort of process when you conducting redundancy. And the reason we talk about this in this particular point in time is because ultimately JobKeeper has just finished. There are businesses now who are legitimately coming to this, you know, this crossroad, where they’re really looking at these things as a viable method of them continuing their businesses in a different way. So yeah, so that’s a bit about redundancy.

I’ve got a few slides to go. So I think just one or two left. So we’ve spoken a bit a bit tonight about, businesses getting the Workplace Relations affairs in order. We think that businesses regardless of whether this is through someone like us or someone else that, a workplace relations review is a great start and look at just looking at your structures, what sort of structures need to be implemented to support your workplace relations function, HR function in your business, the typical things we’d cover in a workplace relations review would be these things that would be things like working out what awards apply, what classification do each of the employees have, what are the minimum rates that apply to each of those employees under the award and the classification level. So that’s the first thing we do for a whole list of however many employees the business has.

We then make recommendations around, okay with that in mind, what sort of salary, wages overtime or other payment structures should the business have. And then that feeds into the contract work. So that feeds into the contract structures work. And typically, when we provide contracts to a client will provide numerous different templates, it could be 5 6, 10, in some cases, different arrangements for different award coverage, different classifications, different employment status, and so on.

The other part we generally look at is the workplace policies because we find that with workplace policies, what a lot of businesses do wrong, they write these policies that ultimately create unnecessary obligations on the business. And we say to business well, the Fair Work Act is hard enough as it is, why would you want to create additional policy obligations about this business will do this, this business will do that in your policies. When some of those things are completely unnecessary. The policies should be focused on meeting compliance standards. Creating expectations of your employees around performance and creating expectations of your employees around behavior and conduct. What it should not be policies should not be motherhood statements about what a business is going to do, and all the extra things that the business is going to do. So that those are things that I would say at the very least to avoid. And your policies should have a very clear and defined focus in mind in creating those three things that are just I just covered.

So yeah, a good review should cover also provision of new contracts, provision of policies, having bonus and incentive schemes that are separate from the contracts, the worst thing that businesses can do is crystalize bonuses and incentives inside the contracts, because then you need agreement to change those arrangements, what you are better off doing is having bonuses and incentives that sit in a separate bonus scheme, so that those schemes can be changed by the business without necessarily seeking agreement. So again, nothing wrong with having a loose reference in your contracts to the existence of a scheme, but the scheme itself should sit outside the contract, in order for the business to have flexibility in the future. And the common example I always come back to is that you can have a product where you’re making, you’re selling half a million dollars worth and making, you know, 10% margin, and then you come across a new product where you’re going to sell twice as much, but at half the margin. And again, that’s that’s where you know, particularly in those sales based roles, you may need flexibility around the sorts of things in your bonus schemes, because you might write a bonus scheme at one particular point in time. And that might not be fit for purpose in 1,2,3,4 years.

So those are the those are the general things that we provide in the workplace relations review, we can do things like contractors agreements, and so on. And look post the review. Typically, we would, you know, if a business wants day to day Workplace Relations support beyond the review, we also have arrangements for those things to occur. So as i said, I’m not trying to sell anything here, I’m just trying to really say that look, a good review and a business who understands its Workplace Relations structures, will be at least understanding the things that are in that list in the manner that I’ve described them. So if the organizations that you’re working with and not doing those things, then it might be time to start thinking about doing those things, particularly in light of the legislative changes that we’ve covered tonight, and some of the external factors that we’ve also addressed tonight.

So I’m basically at the end of tonight’s presentation. So yeah, look, the last couple of takeaways is that look, we do we will offer any business a free discussion around their WR affairs to give them some high level thoughts on what they could be doing better. And any of our consultants can facilitate that. We more generally can facilitate advice and support or any day to day Workplace Relations issues, whether that’s managing staff, dealing with policies, disciplining people, terminating people, conducting redundancies, advice on entitlements and so on. And look, for those who aren’t already one of our associate members, we’d recommend that you consider it’s at no charge you just on our website, we have an associate member feature, that’s there, just check the address. It’s www.ondemanhrhr.com.au/associate, and all that basically is is that, if any, with any accountants, if you have a question, call us any time, we will answer it free of charge. And if you basically want to keep in touch with webinars, we run typically werun one month, on anything from I think last month, we covered what did we covered last month, Andrew? we covered the floods last month, we’re planning on covering next month, a sort of snap of the labor market. We’ve covered also things like the end of job keeper restructuring and redundancies we try and find a topical issue. We won’t necessarily do one every month, but it’s on average about once a month, whenever we feel there is an important topic that we need to bring to the attention of either our clients or associate members, particularly in the accounting fields because that’s where that’s where we’d have developed a lot of great relationships over the years and where businesses have clients of ours have come from. So we find that those relationships very valuable. So please, if you’ve got any questions post tonight, feel free to contact us any time. Keep in touch with us, you know via the associate membership and as I said, Give us a call any questions, happy to answer them.