Thursday, the 8th of September is national “R U OK?” Day.

People won’t always tell you when they are struggling. R U OK? Day is a great time to check in with your employees about how they are doing and to offer any support they might need.

Now, even more than ever, people we know might be having a hard time. Do we know how the people in our world are really going? Sometimes it’s hard to tell. Keep reading to find out more about how you can start a conversation and help others.

We have all read enough in recent years to understand the huge impact that mental health has on individuals and the workplace, including increased absenteeism and reduced productivity. Mental health governs all aspects of our life and employers are now expected to take a role in supporting employees.

It is helpful for organisations to embed “R U OK?” and mental health into their calendars as well and the day-to-day conversations, and for managers to be aware of how to respond when someone says “No, I’m not ok.”

R U OK? is a harm prevention charity focused on suicide prevention through building the confidence and motivation of the ‘help-giver’ to enable them to have the skills to be alert of others around them and to facilitate conversations early if they identify signs of stress or difficulty in another person.

R U OK? Offer free resources at ruok.org.au which will equip people with the skills and knowledge on how to offer support or help connect someone to appropriate support, long before they’re in crisis.

In relation to employee mental health and wellbeing, PeopleStart recommend encouraging and promoting both “R U OK?” Day and mental health in general. Download some free information, posters and resources and share them with your staff. Set aside some time during meetings or 1-1’s to check up on employees or consider sending email comm’s that create awareness surrounding mental health and what support is available to staff both internally and externally.

Today, tomorrow and every other day we need to ask the people around us “R U OK?”, and if they’re not, make the time to LISTEN, ENCOUARGE ACTION and CHECK IN. Start a conversation which might change someone’s life.

There have been some massive changes in the casual employment landscape, and we are very pleased to keep you all informed.

What you need to know in a snapshot

• Finally… a new definition for casuals – hooray!
• Small businesses (under 15 employees) don’t need to offer casuals the right to convert to permanent employment, but employees can still request it.
• Businesses (15+ employees) must make an offer (rather than simply accept a request) to an employee for conversion where they are eligible, or inform them in writing of why they aren’t eligible, by 27/09/2021. Employers still have right to reasonably refuse.
• Rather than the standard “Fair Work Statement” that employers are required to give new employees, there is a new “Fair Work Casual Employment Statement” that you will need to provide (we’ve included it for you)

Overview

The Federal Government’s proposed Fair Work Amendment (Supporting Australia’s Jobs and Economic Recovery) Bill 2020 (the Bill) has now passed both houses of Parliament in a revised and significantly reduced form.

The country breathes a collective sigh of relief with the end of what has been a very problematic feature of the industrial relations area for the past several years, by defining what is a true casual employee and negating (or significantly reducing) the threat of casual employees attempting to ‘double dip’ on annual leave and other entitlements which we saw in several high-profile cases.

We would like to bring 4 main changes to your attention:

1. The Bill introduced a definition of casual employment into the Fair Work Act 2009 (Cth) (FW Act) for the first time, being, if a person is:

• offered employment without a “firm advanced commitment to continuing and indefinite work”; and
• the person accepts that offer,
• then the person is a casual employee regardless of any changes in the employment relationship.

That is, the assessment of whether a person is a casual occurs on the basis of the offer of employment, not on the basis of any subsequent conduct of the parties.

Simple. Can we get a hallelujah!!

When determining whether a firm advance commitment to continuing and indefinite work exists, the Bill requires a Court to have regard to only the following considerations:

• whether the employer can elect to offer work and whether the person can elect to accept or reject work;
• whether the person will work as required according to the needs of the employer;
• whether the employment is described as casual employment; and
• whether the person will be entitled to a casual loading or a specific rate of pay for casual employees under the terms of the offer or a fair work instrument.

2. The Bill confers a statutory right on long term casual employees to request conversion to permanent employment.

The second key aspect of the Bill is the inclusion of a casual conversion mechanism.  Employers must offer to convert a casual employee to permanent employment if the employee:

• has been employed for 12 months; and
• during the last 6 months, has worked a regular and systematic pattern of hours without significant adjustment.

The offer must be to convert to either full-time employment (where the casual has worked the equivalent of full-time hours) or part-time employment consistent with the casual’s regular pattern of hours (where the casual has worked the equivalent of part-time hours).

However, employers are not obliged to make an offer if there are “reasonable business grounds” to not make the offer. Such grounds must be known or reasonably foreseeable at the time of declining to make the offer.

The Bill defines reasonable business grounds to include:

• where the conversion would require a significant adjustment to the employee’s hours of work in order for the employee to be employed permanently;
• where the employee’s position will cease to exist in the 12 months after the conversion right arises;
• where the hours of work which the employee is required to perform will be significantly reduced in the 12 months after the conversion right arises; and
• if there will be a significant change in either the days or times on which the employee’s hours of work are required to be performed in the 12 months after the conversion right arises.

Where an employer determines not to make an offer of conversion, they must give notice of the decision to employees within 21 days of when the right to be offered conversion arose. If an employer fails to give this notice, the employee retains a residual right to request conversion at a later date.

Please note that these casual conversion provisions go further than the existing Award regime of provisions. This is because the existing Award regime entitles employees to request conversion. Under the amended Act, employers have an obligation to offer conversion regardless of any employee request. That is, there is a new proactive obligation on employers.

Casual conversion does not apply to small business employers.

Following substantial contests and lobbying by business and unions last week, the Bill has been amended to confirm that casual conversion rights do not apply to employees of small business employers. That is, employers with a head count of less than 15 employees.

Conversion right can be lost

The Bill makes clear that, where an employee refuses an offer to convert, they no longer hold a right to request conversion at a later date.

Equally, where an employer has determined that there a reasonable business grounds to not make an offer of casual conversion and notifies the employee in accordance with the provisions of the Bill, then the employees also cease to hold a right to request conversion at a later date.

1. New Casual Employment Information Statement

The Bill requires the Fair Work Ombudsman to create a new Casual Employment Information Statement that is to be provided to each casual employee when they start employment with their employer.

You can download that here

This Statement must supplement the Fair Work Information Statement that employers already need to provide employees.

1. Casual loading offset created.

Importantly, the Bill also deals with historical problems that have been created where employers misclassify employees as casuals and fail to accrue leave entitlements for these employees.

Where an employee is found to have been incorrectly engaged as a casual (that is, they are at law a permanent employee), the Bill creates an express right for employers to offset any leave entitlements owed to the employee against the casual loading that is often paid to the casual employees.

In order to have the benefit of this offset arrangement, the loading paid must have had components that can be identified as being paid to the employee instead of one or more leave entitlements.

What next?

This is a great time for employers to better consider the working arrangements of staff, and to introduce processes to track and deal with casual conversion to ensure compliance with legislation.

PeopleStart are offering this service to our client so if you would like any further information please don’t hesitate to ask.

We hope this information has helped!

Staff returning to work after COVID-19? Things to consider

Key Points:

• Understand your health & safety responsibilities
• Conduct a Risk Assessment (free sample Risk Register template)
• Engage staff in the return to work (RTW) process

It seems that Australia might just be returning to normal (or a new normal) and returning to work after Covid-19 sooner than expected.

There’s been a lot of discussion from state and territory health officials about when employees will be expected to return to work places, how employers should approach it, and what employees are thinking – do they want to, might they refuse, will the culture or office environment be as it was before?

For most, it’s a real mix of thoughts and feeling about returning to work after Covid-19. Some people are busting to get back to the office and a sense of normality, some really aren’t looking forward to daily commute, and a few have the worry of the risk of contracting coronavirus (albeit very low risk) in the back of their minds.

We’ve been getting a lot of question in relation to RTW, which we have outlined at the bottom of this blog. We would also like to point out the major considerations for Employers at this time:

1. Your health & safety obligations when returning to work after covid-19

Before asking people to return to work after covid-19 we recommend that you conduct at Risk Assessment for your organisation and outline the Control Measures. Here is an example

You should consider controls such as :

• Social distancing; are your workstations suitably distanced?
• Cleaning; regularly disinfect surfaces, door handles, elevator buttons, keyboards etc
• Hand sanitiser; either have stations or sanitiser clearly available at multiple points throughout the workplace.
• Staggered start and finish times; to stop staff using public transport in peak periods, to ensure you staff aren’t having to wait in long queues to use elevators whilst practicing social distancing
• Plan for an occurrence of confirmed /suspected coronavirus infection of a staff member. What will you do? Who will be responsible for managing it?

Familiarise yourself with the governments 3-Step Framework for a Covidsafe Australia

• Maintain 1.5M distancing and good hygiene
• Stay home if unwell
• Frequently clean and disinfect communal areas
• Allow employees to work from home if it suits both parties (employee / employer)
• Develop a COVID Safe Plan
• Have employees avoid public transport in peak hour
• Don’t gather at work for meetings etc in groups of more than 20 (for the time being, it will move to 100 at Stage 3 of the plan)

We have included a link to the full government Covidsafe download FREE COVID-SAFE 3 STEP FRAMEWORK Road map 

Some companies are considering (or have already) put in place temperature checking for staff when they return to work after covid-19. Before doing so consider your approach to this to ensure the testing is non-invasive and you practice the required social distancing or implement staggered start times to prevent people gathering in close proximity upon entering the workplace.

Also consider the needs of any vulnerable employees ie age, those with compromised immune systems or existing health conditions, and whether or not it might be best for them to continue WFH for the timebeing.

2. Consult with your staff

Don’t forget you’re obliged to follow a proper consultation with your employees in relation to any major workplace change. So rather than flying solo on any decisions such as returning to work, discuss things with your employees and seek their feedback and input before making a final decision about what your RTW scenario looks like.

Communicate with them about their individual situations, has their access to childcare been affected? Are they worried about their health?

Ensure you put any decisions in writing to employees whether by email or otherwise, to ensure that your expectations and control measures are clear.

 Frequently Asked Questions

Can I instruct an employee to return to work?

Yes, in most cases this is considered a reasonable work instruction. Unless of course there is an extenuating circumstance relating to a specific employee or your business ie you can’t ensure workers health and safety by observing recommended safety measures, an employee has caring responsibilities at home, they are a high risk health concern.

You also need to take into account whether the employee needs to attend the workplace in order to perform their duties. If the workplace has the appropriate measures in place and the employee can commute to the workplace safely, it largely becomes a matter of employer discretion as to whether the employee can continue to work from home.

Relevant matters to consider include the employee’s level of productivity at home versus in the workplace, whether the employee needs to be in the office for supervision (either to provide supervision or be supervised themselves) and the need for the employee to interact with co-workers and others face-to-face.

Ultimately, if the employer wants the employee back in the workplace, then they can direct the employee to return. Any refusal by the employee to follow a reasonable direction, could have disciplinary consequences.

Can an employee refuse to return to work?

No, not usually unless it is for a reasonable reason such as they are immune compromised or have a health issue where working from the workplace could cause risk to their health for example.

What are most businesses doing?

We’re hearing that a lot of businesses are taking an ‘easy does it’ or slow return to work process. This might be bringing people back to the office part-time, some working from home for some days, and in the office other days, rather than full time straight away. They are also staggering start and finish times.

Some are even considering ongoing work from home (part time or otherwise) arrangements, to reduce costs in terms of the office space they require, cleaning, incidentals etc and keep their staff happy without the long commutes, dress code and flexibility to work around other commitments. When you are considering returning to work after covid-19 its important to take into account both the business needs and the welfare of employees.

Here are some more FAQ’s that may be helpful

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PeopleStart HR provide Outsourced HR, Employee Relations and HR Advice and support. We offer a comprehensive range of tailored services to small and medium-sized businesses throughout Australia, including Melbourne, Sydney, Brisbane and Adelaide. We work on behalf of clients across all sectors including Engineering, Mining and Resources, non-profit and private companies and SME’s.

Our services include:
– HR Advice & support – Employment Law, Termination Advice
– Employment Contract Review & Creation- Development of HR Policies
– Position Descriptions
– Improving company culture, staff morale
– Building High Performance Teams
– Performance Management
– Workplace training and workshops

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If you have any current HR issues or queries or would like to discuss how we can assist you please don’t hesitate to get in touch to talk to one of our friendly, qualified staff Call us on 1300 134 110 or email us at hello@peoplestart.com.au

If an employee refuses to come to work, or undertake work-related travel, because he/she is concerned about possible exposure to the coronavirus, it basically comes down to whether the employee has legitimate concerns for his/her safety. If not, then you can direct the employee to attend work or travel, and if the employee refuses, the employer can consider applying the usual disciplinary sanctions for non-attendance.

Note that this blog covers healthy employees who want to stay away from work, not employees whom the employer has directed to stay away.

What makes concerns legitimate?

• The employee is following advice or directives issued by the government or a health authority/agency.
• The employee falls under the category of people most at risk of serious infection as identified by the Department of Health.
• There is firm evidence that the employee could be exposed to the risk of coronavirus exposure, for example if the employer has failed to implement adequate procedures at the workplace. The onus is on the employer to demonstrate implementation.
• The employee has raised reasonable concerns with the employer, but the employer has not responded to them.
• The work involves travel, and there is inadequate or no information available as to whether the risk of exposure could arise. In such cases, the onus is on the employer to verify that travel is safe. Alternatively, if an official warning about the travel destination has been issued (or a ban on travelling there), the employer cannot force the employee to travel.

What if the employee’s concerns are not legitimate?

If the employer’s directive to attend work or perform other duties in the course of work (eg travel) is lawful and reasonable, and attending work would not expose the employee to risk, the employer is not required to pay an employee who refuses to attend (subject to any award or agreement provisions that provide otherwise, which is unlikely). The employer also has the option of treating it as a disciplinary matter, again subject to any provisions covering the employee’s employment.

The employer can, however, choose to pay the employee or treat the matter as paid (or unpaid) leave, the latter again subject to any relevant provisions.

Constraints on employer actions

Workplace health and safety legislation imposes a statutory duty on employers to provide a safe and healthy workplace for all employees and other people who attend the workplace. This includes taking all reasonably practicable steps to eliminate or at least minimise exposure to health and safety risks.

An employer cannot take adverse action against an employee for raising concerns or complaining about possible risk of exposure to coronavirus. To do so would be likely to breach the general protection provisions of the Fair Work Act 2009.

Given the current situation of daily developments and revelations about coronavirus, information quickly becoming outdated, widespread misinformation, and very large-scale community concern (eg panic buying of household supplies), it can be argued that almost any health and safety concern raised by an employee will be a “reasonable” one and no action should be taken against an employee for raising it.

Recommended practice is to discuss the concerns with the employee and provide evidence that those concerns have been addressed and/or that the employer’s actions are authorised (eg in compliance with government or health authority directive or recommendation).

To reassure concerned employees, an employer can also consider taking the following actions:

• Allowing employees to work from home or remotely – but encourage them to implement appropriate hygiene procedures at home and consider providing them with work equipment to perform the job, eg laptop
• Arranging private transport to/from work for employees who normally use public transport
• Taking a more flexible approach to the use of leave entitlements
• Upgrading hygiene procedures at the workplace, such as requiring regular washing of hands, cleaners cleaning lift buttons (and any regularly used surface areas), providing hand sanitiser dispensers at entry points, and wearing face masks – whether or not outside directives or available evidence require it

Bear in mind when dealing with employees that many are very scared and highly emotional about coronavirus. Even if they are misinformed or misguided, their fears are understandable in the current climate. Empathise with them and talk to them calmly and rationally.

Can an employee who refuses to attend work be dismissed?

In extreme cases, yes. However, the following circumstances would need to exist:

• The employee had refused multiple directives to return to work.
• The employer has firm evidence that the workplace does not pose a risk to him/her, and has made the employee aware of it.
• It is not reasonably practicable to make some other temporary arrangements, eg work from home, paid leave.
• The employee has been issued at least two written warnings that continued refusal to attend work may result in dismissal.
• The employee has had an opportunity to explain why he/she will not attend work and the employer has taken the explanation into account before deciding whether to dismiss.
• You should also consider factors such as an employee’s length of service, family circumstances and their employment prospects before deciding whether to dismiss. The Fair Work Commission will take those issues into account if an employee lodges an unfair dismissal claim.
• The employer implements dismissal in compliance with the law and award/agreement provisions, eg notice period, pay in lieu of notice, payment of other entitlements.

But even if all the above requirements are met, dismissal, or even stand-down without pay, is a risky step to take. In the current highly emotive climate, a headline that an employer dismissed an employee for being concerned about coronavirus exposure would be a bad look and hard to defend.

Also, take into account that taking firm action against an employee who refuses to attend work may encourage genuinely ill employees to attend work when they should be in isolation.

Here’s what you need to know

With the Christmas and New Year holiday period fast approaching it’s a good time to ensure you have communicated any planned office closure periods for the break with your staff.

Employees can legally be directed to take annual leave during a closure/shut down period if their agreement / award / contract allows for it.

Depending on your business and industry, employees can be under a variety of different awards so it’s best to investigate or seek some external HR advice where needed.

If you don’t know the award and your employment contracts don’t set out the terms for certain closure periods, where some employees don’t have enough annual leave to cover this period, they can agree to either:

• Take annual leave in advance
• Take unpaid leave

However, if an employee doesn’t agree to either of these options then employers may be required to pay their ordinary rate during the Christmas break.

It is advisable to send out a company notification advising a closure will be imposed due to the Christmas period and to outline leave options to employees.

If you need any advice please don’t hesitate to reach out.