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All right, might make a start so fantastic. All right. Good evening, everyone. My name is Clint Indrele, I am the managing director of On Demand HR. Colin, thanks so much for inviting me back here to present to your group, I think I was here either last year or the year before, last year was it? So a lots happened in workplace relations in the past, probably 16 months. So the purpose of tonight’s presentation is to try and provide a group with a, you know, Workplace Relations update on things that might be relevant to your business either directly, or the business of your clients, obviously, in dealing with everything that’s happened in workplace relations and the economy in general, in the last, as I said, sort of 16 month period.

So I’m going to cover a few things tonight in the presentation, I’m going to cover things such as employment contracts, I’m going to cover policies, I’m going to talk about casual employment changes, which has been a significant change recently, as a result of the Fair Work amendments. I’m going to talk about annualized wage agreements and arrangements under the modern awards. I’m going to talk about mandatory classification requirements that now some of our awards have. Going to refer to some other compliance changes that we might see on the horizon, in respect to some further amendments to the Fair Work the Fair Work Act. You may be depending upon how much you’ve been following it recently, some of the Fair Work amendments were passed through in respect to casual employment, while others were put on the sidelines or the back burner, so to speak, until such time as that the government has sufficient time and attention to come back to some of those things. We’ll probably talk about some other external challenges as well, such as mandatory vaccinations being a big question mark now, going around Australian workplaces. Also looking at the end of job keeper. Obviously, that happened about six weeks ago now. So looking at how businesses are dealing with that, in particular, and leading into some discussion about restructuring and redundancies as well. We’ve done a stack of restructures and redundancies already this year, I reckonit be at least 20 or so different redundancies for various different clients, some of them with more than one employee involved. So that’s a bit about what we’ll cover in tonight’s presentation.

I like to be for those who haven’t seen me present before, I’d like to be very interactive. So if you’ve got a question at any time, just just put your hand up, just interrupt me and ask the question, and we’ll just take them on the fly, I prefer that you just get out whatever it’s on your mind. I don’t mind if it’s a little bit off topic, I don’t mind if it’s something completely unrelated to the topic of what we’re talking about specifically, if you’ve got something you want to ask that would benefit yourself or your clients, then fantastic. And we’ll try and cover that in tonight’s presentation.

So I might start though, with just some sort of fundamentals for those who have not, I guess, don’t know a lot about Workplace Relations or haven’t looked at this in discussion with clients or in their own businesses much, I’m just going to focus on to begin with what I would call the kind of pyramid of, I guess you could describe it as the pyramid of how the terms and conditions of employment come together. So at the very base of the pyramid, if you can imagine a pyramid and unfortunately, it’s not the best without the without the slide pack. But you can imagine a pyramid like that, then essentially, what we have at the bottom of the pyramid, most of you will be familiar with is the National Employment Standards. So the National Employment Standards set out the absolute minimum conditions, and entitlements for employees in Australia, across basically all industries, if you like, and essentially, there’s 11 National Employment Standards, I won’t go into what all of those are tonight. But that sets the foundation for, I guess our workplace relation system, and the National Employment Standards are established by the Fair Work Act.

Sitting on top of our National Employment Standards. So as we go up the pyramid are either in your organization or in your clients businesses, you’ll either have modern awards that apply to your business or your clients business, or you’ll have an enterprise agreement, or you may have both. So it’s important to note that in a lot of businesses, you will have more than one modern award that will apply to employees across the organization, depending upon how diverse that businesses is and how diverse the occupations within that business are. So think of that as the second tier, if you like of National Employment Standards that you would refer to. So think of modern awards and enterprise agreements as additional conditions that sit on top of the National Employment Standards. So your modern awards, most people in the room familiar with what a modern award is, what they look like, what sort of conditions are contained, okay. So it basically sets out a whole range of conditions for either a particular industry or a particular occupation, okay. The alternative is to have an enterprise agreement, which covers the particular terms or conditions for either all of the employees or a group of employees within that enterprise. Okay. Now, typically, enterprise agreements are popular in, you know, building related trades. And there’s no requirement to have an enterprise agreement. Except if you are essentially forced to enter into negotiations in relation to one, that would only happen if you either have what’s called a majority support determination, that is a majority of employees collectively say they want to collectively bargain with the employer. Or alternatively, if the employer decides they want to have an enterprise agreement for commercial reasons, and one of the commercial reasons that they may want to have an enterprise agreement is they may want to go to large building contractors, and simply say to them, that they have an enterprise agreement for the purposes of appeasing that principal contractor in their dealings with relevant unions. So ultimately, there is no other than the mandate, other than should I say the majority support termination where you must enter into negotiations, a lot of building organizations think that they have to have an EBA to carry out business, you don’t actually have to have EBA, an EBA to carry out your business or that work. But it may end up being a necessity anyway, because of the commercial considerations that you might be dealing with in relation to those principal contractors. So important to understand, again, that modern awards and enterprise agreements that sit on top of that National Employment Standards and create essentially more conditions, if you like, of employment.

So sitting on top of that, again, is what I would say are your individual employment contracts. So that’s where the employer might be looking to implement a whole range of obligations in respect to confidentiality, non solicitation, intellectual property, a whole range of other things that might be important for the employer to implement. That may not that won’t be covered in a modern award or in an enterprise agreement. So those are the sorts of things you would think about in the employment contract, along with a range of other things we’ll cover in tonight’s presentation.

And last but not least, something that may not necessarily be contractual, but may also play a part in regulating what happens in the workplace is things like your policies and procedures. So determining, okay, what standards of performance behavior and conduct do we have in this organization? And what are some other compliance requirements that we need to meet with our policies? So policies are typically with those things in mind, and later in the presentation, I’ll talk to some of the common mistakes I see in policy writing. So that’s a bit about the fundamentals of what will what we’ll deal with tonight, everyone. And I guess, I’ve given you already a lot to kind of think about, and I guess one of the challenges and what we’re really talking about tonight is okay, how can our SMEs and you know how can our SMEs become compliant with these things? I mean, ultimately, we’ve already seen large corporations coming unstuck with the system we’ve got, if I’m being honest, the system is too complicated. It’s way too complicated. And unfortunately, the Fair Work Ombudsman, they position themselves as a organization that stands for the, you know, for the good of employers and employees. But I see a lot of the latter not a lot of the former, to be quite honest. I mean, there seem to be there is a bit of a employee complaints kind of advocate. And you know, you’ve only got to look at every Fair Work Ombudsman who comes in and want to make a name for themselves and want to start slapping businesses with fines and penalties and all these sorts of things. And you never really see the Fair Work Ombudsman do anything overly, you know, overly good on the employer side of things. That’s just the reality, it doesn’t make headlines and, or it makes bad headlines. And so end up we end up with an organization that’s a little bit politicized in that on that front. So. But anyway, look, we’ll talk about that a bit more as we go through tonight’s presentation.

I might start though with the casual employment changes. In particular, I think this is quite important for everyone to know. So now, based on the Fair Work, amendments that recently came into play, we now have a different definition of casual employment, which is now based on the original offer of employment. So what used to happen in the past, is that ultimately, there used to be this kind of, if you like, assessment of what the parties have been doing during the employment. So, you know, they say it’s casual employment. But there’s been a number of cases where that’s been challenged, because the parties have operated in a way that’s been, you know, more like permanent employment. So what this new definition does, is that so long as the original engagement of the casual employee is, is kind of fit and correct if you like, and that is that there’s no firm and advanced commitment to casual employment or to ongoing work. And there’s certain other things that are observed, then, in actual fact, it won’t matter what the subsequent conduct of the parties may be.

So in the past, you’ve had a couple of these landmark cases you’ve probably heard about over the past year or so WorkPac and Skene, Rosato and Skene. Those were cases that went to casual employees that really were operating like permanents. But what this is now kind of saying is that, if you contractually or from a documentary perspective, agree that the employment is casual, and provided it meets the other conditions, the employment will be considered casual for all intents and purposes.

Now, there is some other obligations that go along with that, there is an obligation to offer casual employees now an opportunity to convert to permanent employment after a period of 12 months. So in the past, the modern awards used to have either six or 12 months, depending upon the industry. And if you were award free, then theoretically, there was no obligation at all. So this creates a blanket now 12 months obligation to offer conversion. Now, bear in mind that when you offer conversion, you don’t have to offer conversion, at the casual rate, you can offer conversion at a lower permanent rate, which typically would be 25% less. And you do not need to offer conversion, in a situation where the person will be getting more hours as a result of the conversion. So put simply, in my experience over the past 11 years, even with various different modern awards, having these conversion provisions. They’re not actually very popular, and casual employees hardly ever take these things up. Because ultimately, it’s just a myth that’s been you know, peddled by the union movement, saying that all these casual employees are insecure in their employment, they all want permanent employment. But when the feet are put to the fire, so to speak, and there had the opportunity to convert to casual employment. We’ve served as 450 clients over the past 11 years. And I can tell you how many times that casuals have requested conversion to permanent employment with our clients, I can tell you, it’s it’s, it’s on one hand, it’s on one hand, that’s how many times it’s been so few and far between. and this is not really going to change anything. I mean, yes, there’ll be an obligation now to offer it, but in reality, are casuals going to accept it? they’re going to weigh up the extra 25%, they’re getting every week, versus taking 25% less than taking a permanent job. You guys are all great around the maths. And I can tell you now, the cost of the entitlements is less than 25%. It is less than 25%. So ultimately, I don’t see there’s going to be a hell of a lot of change. Yes, there’ll be an obligation to offer. But as soon as you tell them, you pay is going down, we’re only offering you conversion the same amount of hours. And it might be more difficult for actually two of us to offer you additional shifts. Those three things alone, pretty compelling reason not to want to convert. So in any case, that exists.

The other new obligation that exists is what we call a casual employment information sheet. So this is now the 11th part of the National Employment Standards. So that is the new 11th standard. That’s been added. And the other thing that the act now contemplates is the ability for there to be orders in respect to casual loadings if an employee is not found to be a casual employee. So basically, what I said at the start is that as long as you engage the casual employee correctly, that shouldn’t happen. But in the event the casual employee hasn’t been engaged properly, you can use casual loadings to offset any claims against for permanent entitlements. So, and again, going back to the numerical stuff, often the entitlements cost is less than the loadings. So that’s a bit about casual employment.

And just continuing on with that, the key phrase to remember is that there’s no firm advance commitment. So it’s important to remember that if we’re engaging casual employee, that there’s no firm advance commitment to ongoing work. And that basically, there’s a situation where the employer can elect to offer work or not, and whether or not the person can elect to accept or reject work accordingly. So that is basically the nature of casual employment. If we’re offering casual employment, we can’t get upset if the casual employee makes themselves unavailable or doesn’t accept certain shifts when they are offered you can’t have it both ways. If they’re casual employees, then that that comes with the territory of casual employment. So that is ultimately some of the key changes. So I guess the probably the headline point being that ultimately from now on as long as casuals are engaged directly, then and as long as the conversion is offered, after that 12 month period of time, then ultimately all of the other things that employers sometimes are worried about and keep them awake at night really disappear, or, you know, certainly the things that they were worried about prior to this amendment somewhat disappear. So, again, comes down to engagement documents and things like that. We’ll get to that a little bit later in the in the presentation tonight.

So, just wrapping that up on on casual employment, I think that you know, having clear conversion clauses in your employment arrangements agreements, clearly identifying the nature of the employment. And the other thing we are recommending is to have casual loading separate in payslips. So if a person’s paid $30 an hour and that includes a 25% loading, then that $6 an hour should be separated on the pay slips, separately identified for the purposes of any future claims and the purposes of offsetting any claims in the future as well. And making clear that it’s casual. So that is pretty much casual employment wrapped up we can come back to it as we go throughout. Tonight, I’ve got some other stuff I want to cover.

The next thing I wanted to cover with you is things around what we call Annualized Salary arrangements or annualized wage arrangements, you’ve probably seen this in the modern awards that came in actually in on the first of March 2020. What this requires businesses to ultimately do is if you have an employee who’s offered a salary arrangement, and if it falls within the category of that modern award, then there are additional requirements for explaining how that salary has been calculated, and what is included in that salary and what is not included in that salary. Now typically, in the past, people think, Oh, it’s just a salary, everything’s included. And there’s kind of this vagueness about well, how many hours of reasonable overtime can I do? How many penalty hours can I do? and those sorts of things. So now we have a situation where there is approximately 20 modern awards out of the 130 that have this additional obligation, the clerks award is one of them, which is irritating, because obviously that is covering a lot of your admin employees in a wide variety of companies.

So we’ll talk about that more, probably the two key things that there’s probably three or four key things, but the probably the first two key things is first of all, the annual salary needs to be enough to cover the award entitlements the person would have otherwise worked. So that’s probably a pretty simple common sense thing to understand.

The second thing is around the timekeeping arrangement. So making sure that there are there is timekeeping. So it’s not good enough to say, I’ve got a salaried employee, I don’t need a timesheet, that that’s just not going to cut it in this kind of new environment that we’ve now got. So if you’ve got salaried employees, if you’re not, if you don’t have a timekeeping process, you might want to, you might want to think about doing you know, changing that pretty soon because you really need to be recording start times and finish times at an absolute minimum and probably breaks as well. And I know that’s very annoying for white collar roles, because you don’t want this clock watching scenario, but that there needs to be a way that timekeeping is captured. So that if there is a dispute that those records can be called upon for the purposes of dealing with those particular disputes.

So the annualized wage arrangements are different. I’m just going to run you through I wanted to show you the list, but unfortunately, we don’t have the board. But basically, the annualized wage arrangements are across the following awards. So banking finance insurance award, broadcasting award, which I wouldn’t imagine would cover too many, clerks award, contract call centers award. I’ll just pick some of them out because there’s there’s quite a lot. Restaurant award is a common one, hospitality award, we’ve got local government award, manufacturing award, pharmacy award, mining award, there is a few others, but I would say that the others are a lot less common. So there’s 20 in total, if any of those awards that I mentioned, impact on your business or your clients business, the likelihood is and they have got salaried employees, there’s likely to be some Annualized Salary obligations that either haven’t been met or haven’t been considered.

And the common thing I hear from these sorts of clients as well, our Employment Lawyers reviewed these contracts. And you know, they did that two or three years ago, and that, unfortunately, is just not enough. Basically, they’re wanting employers to define what is the outer limit of penalty hours and overtime hours included in the salary. So basically, you’ve kind of got to do a bit of a pseudo calculation of, Well, okay, if the award rate from this salary role is 55, I’m paying 70. That buys me X amount of overtime per week.

And then you don’t actually have to put it into an employment contract. But what what we would normally recommend is that you issue a subsequent what we call annualised salary letter, which explains how the salary is calculated. And then the stupid thing about this legislation or this, this change in the Modern Award is then it becomes a bit of a moving goalpost because you’ve got, every time the Fair Work Commission increases the Modern Award, then that bumps up the minimum, which theoretically reduces the amount of overtime you can have. Because you might have been able to have 5.5 hours and then after the increase, if you haven’t increased the rate, then that might only be 4.5 hours or 4.7 hours or something like that. So you’ve got this, it’s Look, I don’t think it’s been very well thought out. And we haven’t seen any compliance of it as yet. So, again, how I think this practically will be dealt with is it’ll just simply be a case of what has always been that employees will make disputes about, you know, salary arrangements that are not fair and reasonable, when compared to what the award have paid them.

Whether the Fair Work Ombudsman does anything beyond that, it’s hard to say whether they will, if an employee’s earning, you know, $100,000 a year, and the award minimum is 50. And they’re not doing anywhere near the amount of overtime to take them over the top, then will the Fair Work Ombudsman have any interest in those arrangements? It’s hard to say, I don’t know, at this point. And yeah, it’s difficult to say but in theory, these obligations exist, they are in the Modern Award.

Why is it significant? Because the first 12 months of so called, you’re supposed to do a reconciliation every 12 months of what the employee would have earned against the annualized wage arrangement. And theoretically, the first reconciliation was on the first of March 2021. So, again, we’ve heard nothing from the Ombudsman around compliance. I know this all sounds like a big headache. But basically, that’s what we’ve got in terms of these modern awards. So that’s what to expect in relation to that probably the only final thing I would say on that really is Yeah, to make sure the timekeeping is right, as an absolute minimum, to make sure that the annual salary is enough to cover up the sort of overtime you’re expecting. And then the third component is well, is the contract good enough to cover the exemptions we want? And then, you know, should we issue an annualised salary letter as part of our employment documents? So again, it’s hard, it’s so hard to, for me to, to give that recommendation when it’s so impractical. It’s so impractical to do it. So we’ve got clients that do it. But ultimately, again, come first of July, all of those letters, what are we supposed to do? produce a whole bunch of letters Now, let’s say, actually now you’ve got 4.7 hours of overtime, not five.

And then and then the other thing that’s really unclear about this is the number of overtime hours. So if you go you know, if you say what we what we recommend as a way around this is let’s say you calculate your annualised salary arrangements as being that you’ve got 12 hours of extra overtime covered, we would probably say something like, just say 10 in your annualised salary letter, and then ultimately, have a general offset clause in your contract, which says any above award remuneration can be offset against award entitlements. So it’s important remember that contract and ASA letter are two separate things. But basically, if you’ve got some contractual clauses, which are at least offsetting, then if you forget to, if you forget to change the annualised salary letter after you first issued it, the consequence of that is probably negligible. So anyway, I’m sure I’ve confused you all with those last couple of things I spoke about, let’s move on to something a bit more intellectually stimulating.

But look, again, those are all things we would do in what we call our workplace relations review, is that we would look at a client’s affairs we would go through each and every single employee, say what award covers them what classification they are, and we would tell you whether or not an ASA letter is required or not. That’s what we would do. And we would make a recommendation and say, we recommended an ASA letter, five hours a week recommended a ASA letter 10 hours a week. That is the sort of recommendations we’d make as part of our process in going through these things.

So the next thing I’m going to cover is mandatory classifications. So there are now some modern awards that require the employer to notify in writing the employee of what classification they are under the relevant award. So some will do this in a blanket way across the board, where they will say, you must notify all the employees under this award of their classification upon commencement, while other awards may have it only for certain employment categories. So, for example, the clerk’s award requires all employees to be advised at their classification level under the award, which obviously leads into the whole conversation about annualised salary causes being provisions being easy to enforced. The manufacturing award, for example, only requires the mandatory classification of casual employees, not permanent employees. So, not sure why that’s the case. But ultimately, that is something to look out for. So this is very specific to certain awards. And again, something we consider in the review, is there a mandatory classification requirement or not? And does this apply to the employees in that list? So did you have a question? All good.

So I guess, just adding those three things together, so casual employees, annualised wage arrangements, mandatory classifications, these are all things that should really be dealt with in your contracts or the associated schedules. I would say to you that if you’re operating under some sort of generic contract that your Employment Lawyers prepared five years ago, that’s probably not going to be fit for purpose in 2021.

The approach we take is, we will do that award coverage classification, ASA assessment first, and then that feeds into all the contractual structures thereafter. And that’s the only proper way to do it, you can’t just be saying, well prepare an employment contract for me, based on what? you know, you just want just roll out a template and say, and look unfortunatly, there’s still a lot of generalist lawyers that will do that, that really don’t don’t care to understand what are the industry awards that apply? Mainly because they even have had an either haven’t read them, or they haven’t really kept kept up to date with their knowledge on these things on modern awards, and all these, you know, intricate changes that have been happening.

So, the other purposes as well, that obviously you contractual arrangements should articulate a number of things, exclusions of any award conditions you are certainly looking to exclude, because there will be a lot of situations where employees are not covered by the annualised salary arrangements. So the type of contract we’ll have for a annualised salary arrangement employee will be totally different from one that we have for a non annualized salary employee. And the there are a couple of ways around the annual salary provisions as well.

So for example, if I pay an annual salary of, let’s say, just gonna pick a number 30 hours a week, or $30 an hour times 38 hours a week, what’s that it’s 1140, 1140 a week, I can represent that two ways, I can represent that as a salary of 1140 a week 50 52 to something like 55,000, or I can represent that as an hourly rate that’s all inclusive, and paid beyond 38 hours. So there is certain tricks that can be achieved to get around some of these provisions. And that’s why it’s important to understand what award coverage there is, so that you can look at whether or not you need to implement some of these things to achieve what you want to achieve. So that’s pretty much all I wanted to say about the changes.

So those changes are all sort of, again, questionable. Do they do much for business? Not really, casual employees one probably does the ASA one just makes business more difficult. The mandatory classification stuffs just makes business more difficult. So you know, all in all, unfortunately, the government seems to be afraid at the moment of taking any major IR change to the electorate, or not even to the electorate to the to the you know, to the terrible media that we’ve got. And and basically ever since WorkChoices was kind of defeated, if you like in 2007, there really has been no shift. The other way it’s kind of been all pretty much one way traffic. So that’s certainly what I’ve seen in reform or the lack thereof in the last 13 years. And yeah, so look, at least this casual employment thing is something. The other thing I wanted to say about further IR changes is that the other changes that have been considered is the increase in fines. The small medium and larger businesses, small businesses, they’re now looking at potential fines for under payments going up to 99,000 from 66. Medium Business fines two times the benefit obtained or 99, which is whichever is the higher large businesses three times the benefit obtained or 666000, whichever is the higher, there is also the possibility for severe cases to attract up to four years of jail time. Now, that’s not part of the reforms yet. That was part of the bill that was kind of, if you like, separated out to be looked at again at a later time. So that may be something that will follow later this year. And certainly stay tuned for whether or not that that comes into play. So yeah, there is some other talk around flexibility for part time employees. But again, very low level stuff that we might see in a second amendment to the bill.

All right, I’m gonna move on to vaccinations so very topical, obviously, very divisive issue, if you like. So, at this particular point in time, we have no real solid precedents to tell us whether or not employers who require their employees to vaccinate, who don’t vaccinate, whether that’s grounds for termination or not.

So we’ve already had a couple of cases where it’s actually Good Start Learning was involved in both cases, funnily enough, they had a policy of flu vaccinations for people who worked in childcare, two employees refused those vaccinations, were terminated by the employer. And they took the cases to the commission. And the commission basically sided, the first case was one that was thrown out on procedural grounds. The first one was one that was thrown out because the employee filed out of time. But the commission said that the employee, that sorry, that both sides of the argument were arguable, was kind of almost giving a hint that the employer would have had a reasonable case. The second case, basically, there was no evidence why the person couldn’t have the vaccination, no medical grounds. And basically, I believe the termination was found to be fair and reasonable on that basis.

So effectively, what, and look, the fair work commission, fair work ombudsman and safe work have said, this is not a precedent for COVID-19 vaccinations, but thinking about this logically, and where I think this is going to fall. If a flu vaccination is being held to be valid in these industries, you’d have to say that the employer would have an even more compelling argument for a COVID vaccination policy, then a flu vaccination policy. So I suspect, that how this will probably fall is that employers who enforce that position will probably as long as as long as the procedural part of it is correct, will probably have the right to terminate in those situations where employees flat out refuse to vaccinate

Now, couple of grounds, there could be they could be medical grounds that will have to be factored in. So each every case, obviously has its own merits. But there could be some that will argue they shouldn’t get it on medical grounds. There is others that may argue that they don’t want to get it on religious grounds. And I probably throw political reasons into that into that mix as well. I mean, some people when I think, quite rightly, would say that, you know, that would be politically opposed to having a certain vaccination for COVID because of their political views on these things, and how it’s been positioned.

So it’ll be interesting to see religious reasons, political reasons, medical reasons, whether they provide any exemptions for these sorts of acts that the employers will take, I think what we’re going to really see, we’re telling our clients at the moment to do nothing more than the government says, so if you’re in an industry, and the government says you must COVID vaccinate, well, then you kind of hands are kind of tied

In the childcare it was even they recommended in the childcare to get the flu vaccination. So perhaps it’s even if the government recommends Yeah Reccomends for the industry not even mandates. Correct. Yeah. And that’s, that’s really interesting. And the other thing that I picked up in in another group I was actually talking to last night, was that I think what will also be interesting is the businesses that rely on the customers who have those requirements will also have probably the knock on effect of that.

So for example, if a business services only childcare businesses, and that childcare business is required, to have everyone vaccinate, well, then, by extension, you’re probably going to have businesses that would potentially be impossible to operate without them also vaccinating or having their sales reps vaccinate or whatever it may be that has a connection with that business. So look, we’re saying do nothing more than the government says at this point, because I think businesses that want to start How do I put this? Going out, Going, going alone on saying, well, we’re going to require everyone to vaccinate, we don’t care what the government says, if it’s not really necessary in their industry, I think they’re potentially taking on some of the risk associated with that. I think if you’ve got the government saying, Yeah, you’ve got to have it and that sort of stuff, then fine. But I think that if you’re just just you know, a person who strongly believes in vaccinations, and you want to just impart that view, on your whole, on your whole employment, or all of your employees in your business, I don’t know, that’s a great idea. And I think that you’re better off waiting to see if there’s any potential side effects. And we’ve already been, there’s already information about clotting in some situations. And you know, whether or not there is some people that adversely react to certain vaccinations, the vaccine is very new.

So again, Australia, we’re probably going to have the benefit of actually seeing what happens in other countries, because the urgency really here is not as urgent, simple as that. So based on the non existent case, numbers we’ve got, so But yeah, it’s going to be very interesting in the next year, at the moment, there will be a case eventually, in the Fair Work Commission that will test the issue of COVID vaccinations that will happen, I reckon that’ll happen in the next year, there will will inevitably be a case. And if I come back next year to present to you, to all of you, I’ll be able to tell you about that case, but I think in the next 12 months, stay tuned, they’ll definitely be a case that will deal with this one way or the other.

The other thing I wanted to quickly cover is the end of job keeper and restructuring. And look, obviously, I guess businesses, for lack of a better word have been kind of, you know, swimming, swimming naked now for about a month and a half without the government funding and without the government kind of welfare if you like, and I’m sure you’re all probably hearing different stories around businesses, how they going and that sort of stuff. So I think that there’s really two things out of that.

So either businesses that are still struggling, either need to do one of two things, they either need to negotiate ongoing changes to their employment, contractual arrangements with their employees going forward. Say that look, we no longer have a full time employee for you, will you accept the part time employee Yes or no? part time employment, Ys or No? negotiate that out.

Or the alternative is to go down a redundancy path, and often the two will work hand in hand. And what I would say on redundancies is this, I don’t know how many of you have tuned in to my webinars and other talks I’ve done on this in the past. But a couple of key things on redundancy. So first of all, section 389 of the Fair Work Act requires us to do two things, two key things on redundancy, number one, three key things, number one, redundancies got to be genuine. Okay. The second thing is that you must consult with the employee who was affected prior to carrying out the redundancy. So that does not mean having one meeting and advising the employee of the inevitable. What that means is having a period of time where you say to the employee, your current position is going to be affected. And we have these alternatives, or we don’t have alternatives. And we’re still thinking about the alternatives. And if we don’t have any other alternatives by this date, your employment may be terminated.

And then at that second meeting, generally we recommend a consultation period of at least seven days, then saying, We’ve offered you these alternatives. You haven’t said you want any of them. So we have no option but to terminate, or we have no alternatives, we haven’t been able to identify the other alternatives. And we’re now going to be terminating your employment at the end of that consultation period. So the consultation period is critical. Because if you don’t have one, you may as well just turn up to the commission with a checkbook open, ready to pay whatever the settlement is that the applicant wants. Because, again, and all the case law we’ve seen around this suggests that if you don’t consult, it’ll be an unfair dismissal. Simple as that.

So two meeting process minimum consultation meeting, final meeting to deliver decision and in the interim period is offering alternatives. And when I talk about alternatives, don’t think of suitable alternatives. Think of any alternatives. I’ll give you two good examples. One, we had a think it was a logistics manager with a company that we had was on $140,000 a year. The only alternative we had was him working was a store person position on a part time basis at $25 an hour for 20 hours a week. Now. We knew 99% chance the persons does not going to take that alternative route on are not going to want to express interest of that alternative role, but nonetheless, offering it demonstrated that we considered what other alternatives may exist.

40:00
Second option, or second scenario, I had a client who had two sales reps, one in Queensland one in Victoria, they decided, look, there’s no, we’re not getting the results we want, we want to pull the money out use it somewhere else, they decided they wanted to put money into the United States. I said to the client, my recommendation is that you offer these two employees the opportunity to apply for the United States roles. Now, again, 99% chance, they’re not going to apply. They’re going to up end their whole life and go to America to North Carolina to take on these these two roles. But great risk mitigation exercise, we’ve considered the alternative roles we’ve offered them, they haven’t said yes, we’ve then gone ahead with the redundancy. And if they took took it to the commission, which they didn’t, if they took it to the commission, we could argue, we considered what options are available. These are the options are available, we offered them, where you’ll come in where you’ll come unstuck is that when there was all there is alternatives or vacant positions and you don’t offer, that’s when you’ll have problems, because you’re worried about Oh, we don’t really want that person to stay on or fine. If you don’t want that person to stay on, just make the alternative look less attractive, make it look as least attractive as possible. You know, if it’s even if it’s a decent alternative, make it sound less attractive, or make it sound like it’s something that they don’t want to position themselves for.

41:19
Because I want to go to the commission, if I represent any one of your businesses or you, any of your businesses personally, I wanted to go to the commission and say, Hey, here was an alternative. And we offered it and they didn’t want to take it. We consulted for seven days. They didn’t take the alternative. We terminated. What else do you want us to do Commissioner? Simple as that. So that’s the best position for us to be in. If we’re arguing for redundancy.

41:40
Probably couple other things I would say to you on redundancies, to think about one tip I will give you it’s got nothing to do with the law. That one tip I would give you is that if you are going through a redundancy process, seriously consider offering what we call outplacement services. Outplacement services will cost you about 1000 bucks plus GST, depending on which provider you use, some are more expensive than that. What the outplacement provider does, it just talks to the employees being made redundant about basically gives them some interviewing techniques about how to find their next job, picks up the resume talks to them about types of roles they should be applying for. That might all sound silly. And you might think what a waste of money, but paying $1,000 for the employee thinking about their future rather than focusing on Geez, that was really unfair that I was made redundant, believe it or not, massive impact. And we’ve seen every time a client has done it. We haven’t had a single unfair, that’s come out of it. So again, cost you an extra 1000 bucks. But you know, it’s i wanna i want to guarantee to our to our unfair dismissal claim, but it’s certainly if you want to shift someone’s mindset out of thinking about why did I get picked for redundancy? Why didn’t Joe Bloggs get picked for redundancy? Or, you know, it was unfair for these reasons they didn’t consult with meenough and all those sorts of things. The employee can either go away and think about that. Or they can think about, oh, what role should I go for next? that sort of thing. So that’s changing that mentality,

43:16
I might just wrap up with two more things. As I’m sort of mentioned earlier, I think that where our philosophy has changed slightly, as we’ve said, of our clients, particularly the last 12 months. And, you know, I would encourage you to talk about this with all the clients if they if the sort of things that we’ve spoken about tonight, with your clients or kind of if they’re not understanding these things, or they haven’t already understood these things, it might be appropriate for them to be considering doing a workplace relations review through us. And as I said, what we would cover that in that would be things like award coverage, classifications, minimum rates, making recommendations about salary, wages, overtime, all their other payments, their bonus payments, as well, how those should be structured, reviewing their existing employment contracts and policies and in most cases, rewriting them and, and, and also looking at things like their contractors agreements, as well. And stuff like the payslips and how those, how those are displayed.

44:14
So I what, where we’ve changed slightly, we’ve just sort of had a very high demand for our services. And we’ve sort of we operate a little bit differently now. And most clients we now have, will do an initial review with us and then we’ll we’ll look at engaging them for support. later on. On a kind of we sort of have a membership style arrangement now. So we’ll normally give them like unlimited support on what we call essentials, essential items. And then essential Workplace Relations support so anything disciplinary redundancy, there’s a whole range of things we do.

44:47
But we’ve also started to get into the space of offering them online training modules as well. So giving them compliance training for their employees, but also management training. So things like you know, things like manual handling training, bullying, harassment discrimination training, we’ve recently done Leave, leave training all the leaf types under the bNES we’ve done interviewing training for managers, and I’ve missed one performance management training for managers as well. So we’ve started to combine an advice component with kind of like a learning component. And just looking at focusing on we plan on having, but by the end of the year at 10, online courses that are available for our clients, as part of their arrangements or part of their membership arrangement. So look, if you’ve got any clients that are, you know, typically what I would say is a client is kind of 10 or less employees typically just be a one off review sort of scenario. And then kind of, you know, they kind of on their merry way, a client, that’s, you know, 10 plus should really be thinking about support, should be thinking about, you know, getting ongoing advice and not doing it on a, what we found in the past was kind of giving clients this kind of ad hoc advice was that they’d come to us with a problem. And they’d come to us when we can only change this amount of the result. Whereas if they come to us earlier, we can change that amount of the result. So the planning for the result, that goes into it, like Wi Fi, or clients that sometimes the mentality is Oh well, I don’t want to, I don’t want to, you know, engage advice to deal with the problem. At this point, I’ll only do it if the kind of the lack of a better word if everything goes really bad, so that that sort of mentality costs businesses a lot in terms of just all the mental energy, they’re wasting on the problem that they’ve had bubbling along until they get the advice. The inefficiency of managers doing it like problems that we can diagnose in half an hour, might take a client 10 times as long to figure it out, they can be there for months sometimes, trying to work through a problem that we can resolve in 30 minutes of know how. Same same with you guys, same as the plumber, the plumber who comes into your house, it looks at your, looks at your bathroom and tries, you know, he’s he’s sort of resolves the problem much quicker than you could do yourself, because you don’t know how.

47:11
So we’ve, we’ve sort of gone away from that. And what we’ve tried to encourage all of our clients now is into this kind of unlimited support style arrangement, where come to us, come to us straightaway, kind of stray away from them, and discuss the problem, or discuss the scenario. So that we can prepare for the solution. So that you’ve got confidence and certainty about the result, not not kind of, Alright, here’s a massive problem, let’s clean it up, sort of thing. And we still we still clean problems up, don’t get me wrong.

47:41
But you know, it’s always better for businesses from a cost perspective. And I talked about more than indirect costs. So the costs of their time, the cost of them being inefficient, the cost of their managers being inefficient as well. And, and we’re seeing a lot more now as well, even even larger clients that are even some of them are over 100 plus, we’ve got now clients moving away from internal HR, not finding it effective. And we’ve established some arrangements with you know, we’ve got clients now as big as kind of 175, but no HR manager, just direct line access to us direct line manager access to us to talk through their issues and concerns. So, you know, if you’ve got clients that are particularly that 15 Plus or 10 Plus, that don’t have that support, I’d be kind of asking why, you know, and most of the time, the internal know how is not enough to solve the problems efficiently. And and the business kind of thinks, well, I’ll just pay this person to pick this stuff up. And often you might find that we are contracting that stuff out is actually a lot more efficient, cost effective than having an employee who’s inefficient at doing that work.

48:48
So