Paid Family & Domestic Violence (FDV) Leave Personal Leave in Western Australia Changes to Parental Leave Managing Employee Annual Leave Balances Employers have a range of obligations to uphold in relation to staff leave and entitlements. For example, employers must ensure they are: keeping up to date on the latest employment regulations, paying employees their correct entitlements, and communicating effectively with employees to inform them of their options and any changes to their entitlements. Here are some recent updates to employee leave entitlements that employers must be prepared to implement: Paid Family & Domestic Violence Leave On 27 October 2022, The Fair Work Amendment (Paid Family and Domestic Violence Leave) Bill 2022 passed both houses in parliament. This updates the National Employment Standards (NES). Effective 1 February 2023, employees affected by family and domestic violence will be entitled to 10 days of paid Family & Domestic Violence (FDV) Leave per year, up from the current 5 days of unpaid leave per year. Small businesses will have until 1 August 2023 for the changes to take effect. FDV Leave is available to employees who have experienced violent, threatening, controlling, or abusive behaviour by a close relative, a member of an employee’s household, or a current or former intimate partner of an employee. The entitlement allows the affected employee to take time off from work to do things necessary to alleviate their situation, such as seeking support, finding safe accommodation, or attending court hearings, without putting their employment at risk. The new entitlement will apply to all employees, including casual employees and employees under enterprise agreements which already have paid FDV Leave entitlements. Employees will have access to paid FDV Leave from the day they commence employment, and the entitlement will refresh every year. Employers should update their leave policies and monitoring systems before 1 February 2023 to reflect the new changes. It is important for employers to understand their role in supporting employees experiencing FDV, including practical workplace supports and safety plans. WorkPlacePLUS provides contact officer training to help employers ensure their staff can confidentially access appropriate information, options and resources. Learn more > Personal Leave in Western Australia Changes to the personal leave entitlement have been introduced for all employees in the state industrial relations system of Western Australia. Sick leave and carer’s leave have been combined, and both forms of leave are now termed ‘personal leave’. The new personal leave provisions in the Minimum Conditions of Employment Act 1993 (MCE Act) were introduced by the Industrial Relations Legislation Amendment Act 2021 and commenced on 20 June 2022. For more information, refer to Changes to employment laws in Western Australia . Changes to Parental Leave > Managing Employee Annual Leave Balances > WorkPlacePLUS provides outsourced support and assistance with complex HR matters, such as the correct interpretation and implementation of employment regulations. For more information, please contact us today.

Is it time to review your workplace culture? Last week Anna Pannuzzo was interviewed on ABC Radio National about toxic work cultures - what they look like, how they impact on people and what can be done to address the causes and consequences of workplace toxicity. Listen to the podcast here > The five key signs of a dysfunctional workplace are: 1. Poor leadership and lack of support 2. Poor communication 3. Poor attitude and fixed mindset 4. Lack of teamwork 5. Staff conflict When a workplace culture is so dysfunctional that it is having a negative impact on staff’s health and wellbeing, it could be classified as a toxic workplace. A toxic workplace can manifest in countless undesirable ways, such as a high turnover of senior management, absenteeism, a gossip culture, low productivity, workplace claims and bad vibes amongst staff. Why bother fixing your toxic workplace? Positive work cultures promote happy, loyal and productive staff. Employers also have legal obligations under Workplace Health & Safety (WH&S) and the Fairwork Act to ensure they are maintaining safe, healthy and fair working conditions. For more information, training and support, please contact us today. TO ACCESS MORE INTERVIEWS & PODCASTS, VISIT OUR MEDIA PAGE >

5 key questions to ensuring a lawful placement Internships sometimes hit the headlines for all the wrong reasons, such as when employers use internships to take advantage of people who are trying to gain experience in the workforce. The Fair Work Ombudsman considers unpaid work experience and internships that are not vocational placements to be unlawful if the person is in an employment relationship with the business or organisation they are doing the work for. People in employment relationships are employees of a business and entitled to: a minimum wage, the National Employment Standards, the terms of any applicable award or registered agreement. Employers need to consider whether or not a person is an employee. It is a matter of working out whether the arrangement involves the creation of an employment contract. That contract does not have to be in writing, it can be a purely verbal agreement. There are a range of indicators that an employment relationship exists, and it needs to be assessed on a case by case basis. Key indicators of an employment relationship are: an intention to enter into an agreed arrangement to do work for the employer , a commitment by the person to perform work for the benefit of the business or organisation and not as part of a running a business of their own, and an expectation that the person will receive payment for their work. An employer needs to consider the following questions to ensure the internship is not unlawful: 1. What is the purpose of the internship? If the purpose of the internship is to give the person work experience it is less likely to be an employment relationship. But if the person is doing work to help with the ordinary operation of the business or organisation it may be an employment relationship arises. The more productive work that’s involved (rather than just observation, learning, training or skill development), the more likely it is that the person’s an employee. 2. How long does the arrangement run for? Generally, the longer the time period of the arrangement, the more likely the person is an employee. 3. What are the person’s work activities? Is the person doing work that is significant to the business or normally done by paid employees? Does the business or organisation need this work to be done? If the person is doing work that would otherwise be done by an employee, or it's work that the business or organisation has to do, it's more likely the person is an employee. 4. Is the person expected or required to work? Although the person may do some productive activities as part of a learning experience, training or skill development, they're less likely to be an employee if they aren't expected or required by the business or organisation to come to work or do productive activities. 5. Who's getting the benefit? The person who’s doing the work should get the main benefit from the arrangement. If a business or organisation is getting the main benefit from engaging the person and their work, it’s more likely the person is an employee. The Fair Work Ombudsman website provides information to help employers better understand the various forms of unpaid work. WorkPlacePLUS has a specialised HR team that can support employers to meet their workplace obligations. To discuss any HR issues you may have please contact us today.

You could argue that workplace compliance is a two-way street between the employer and the employees, each party being responsible for knowing and understanding the current employment obligations and requirements. Employers are primarily responsible to ensure that they comply with the myriad of legislation and regulations around employing staff. By the same token, employees need to understand their legal rights and take the time to properly review and understand their employment contracts and the organisation’s policies. At the end of the day, however, the onus is on the employer. So are the risks. Ultimately, Directors or Senior Executives have the key responsibility of complying with the legal and regulatory requirements of running a business or organisation. For example, such requirements related to employing staff include: Fairwork Act 2009 Sex Discrimination Act 1984 Disability Discrimination Act 1992 Australian Taxation Office – PAYG and Superannuation Guarantee Workplace Health and Safety Act AWARDS Workplace Agreements + more Not meeting your obligations can result in criminal sanctions, civil sanctions, disqualification, penalties and commercial consequences. Ignorance is no excuse.  Even small error unnoticed over time can result in severe consequences for inadvertently underpaying workers. Read some cautionary tales > How often do you review your HR and IR processes and controls? Can you afford to not to comply? Employers can mitigate their employment obligation risks by consulting with an experienced Human Resource advisor who can implement various support tools. A Human Resource and Industrial Relations specialist can help you ensure you are complying with employment contracts, implementing Human Resources Policies and Procedures and maintaining accurate recordkeeping. At WorkPlacePLUS, we offer risk mitigation services, full HR reviews of your policies and procedures and independent workplace investigations for when an issue arises. To discuss how we can assist your organisation, please contact us today.

Annual leave is an entitlement for employees which is to be taken regularly to ensure that they have appropriate downtime and can relax. Not taking accrued annual leave can be hazardous to the health and safety of employees. Excessive accrued annual leave balances can represent a significant financial liability for employers. Some general options for managing employees with excessive annual leave balances include: Shutdown Depending on business requirements, employers may shut down during quiet periods, for example over Christmas/New Year, and require their staff to take annual leave during this time. There are rules and conditions around this so make sure you seek professional advice. If your employees are covered by an award or an agreement, you will need to check the relevant provisions. Read about temporary workplace shutdowns in modern awards > Direction to take leave If an employee has accrued an excessive amount of leave, it is considered “reasonable” to direct them to take annual leave. While the Fair Work Act doesn’t define how much leave is “excessive”, greater than four weeks can be used as a general guide (this is used in many agreements and policies). Again, if your employees are covered by an award or an agreement, you will need to check the relevant provisions and seek professional advice. More Alternatives Other options for managing employees with excessive annual leave balances may include cashing out of leave or requiring employees to use leave within a certain period, but it's crucial to seek professional advice before proceeding. Remidner: Accrued leave can’t be lost just because an employee hasn’t used it within a stipulated time. It is important for employers to be familiar with the rules around annual leave entitlements and, ideally, be able to come to an agreement with employees around managing leave balances. For bespoke assistance or more information, please contact us today.

Industrial Relations Reform: Significant changes to the Fair Work Act impact your current employer obligations The Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 was passed by the Federal Parliament on 2 December 2022 and was formally accepted by the Governor-General on 6 December 2022. The new laws will impact all Australian workplaces, with some parts requiring urgent attention from employers. These include: Pay secrecy has ended - Staff can now choose to discuss their pay with other staff. Pay secrecy clauses in existing contracts have no effect as of 7 December 2022, and employers can no longer offer new contracts containing pay secrecy clauses. Employers must update their employment agreements and contract templates immediately to reflect these changes. FWC has more bargaining power – From 7 December 2022, if the Fair Work Commission (FWC) considers that a party is not engaging in good faith enterprise bargaining, it can now issue a bargaining order. Terminating an EBA after the nominal expiry date has new parameters - From 7 December 2022, the FWC is has more power to prevent employers from terminating an enterprise agreement as a bargaining tactic, and to support an employee or union to terminate an unfair enterprise agreement. Employers should review their EBAs and consider their renegotiation options. Job ads cannot offer less than the minimum wage - From 7 December 2022, it is unlawful for an employer to advertise a pay rate below the minimum rate of pay, including the minimum rate of pay under an award or enterprise agreement. FWC can make equal remuneration orders - From 7 December 2022, the FWC must consider gender inequality when reviewing modern awards, and it can initiate orders to combat wage inequality without receiving an application. In addition, EBAs can now contain measures intended to achieve equality for employees with particular attributes. Protected attributes have been expanded - From 7 December 2022, the list of attributes protected from discrimination now includes gender identity, intersex status and breastfeeding. Employers should take a proactive approach to preventing workplace discrimination. Workplace sexual harassment will be further prohibited through the FWC - From 7 March 2023, a person subject to workplace sexual harassment will be able to seek compensation and penalties through the FWC. This is in addition to the existing right to seek a “stop sexual harassment order” and will not affect existing rights to make claims under other legislation. Employers should take a proactive approach to preventing workplace sexual harassment by reviewing their work, health and safety control measures and conducting a review of the workplace culture. There are a number of further changes that will take effect at later dates in 2023. These relate to: Limiting the use of fixed-term contracts Expanding the grounds for requesting flexible working arrangements Expanding multi-enterprise bargaining provisions Expanding the application of the better off overall test (BOOT) Simplifying the approval process of employment agreements Arbitrating intractable bargaining disputes Ending enterprise agreements that pre-date the Fair Work Act Increasing the cap on small claims Legislative reform puts you at risk It’s critical to keep your policies, processes, employment agreements, EBAs and payroll systems up to date with current legislation. Honest, well-meaning Directors or Senior Executives can face the unwelcome surprise of penalties or legal expenses simply because they have been unaware of legislative changes affecting their workplace. WorkPlacePLUS can help ensure you are meeting your employment obligations. For more information, please contact us today.

Compliance Alert Overpaying or underpaying your staff puts your business at risk. It’s important for employers to know how to prevent and remedy the overpayment or underpayment of staff. Overpayment Overpayments can happen when an employer misinterprets the employee’s entitlements, or because of a payroll error. According to the Australian Payroll Association , overpayments are almost as common as underpayments. The Fair Work Ombudsman advises that employers can’t take money out of an employee’s pay to fix an overpayment. Instead, the employer and employee should discuss and agree on a repayment arrangement and put this in writing. If the repayment can’t be agreed on, the employer should seek professional advice. The process for fixing an overpayment is: 1. Work out how long the employee was overpaid 2. Work out how much the employee was paid and what they were entitled to be paid 3. Calculate how much the employee has been overpaid 4. Discuss with the employee and confirm repayment arrangements. 5. Implement the agreed arrangement and make any adjustments in the payroll that are required. A deduction can only be made to get back an overpayment if it’s allowed under a registered agreement (and the employee agrees to it), award, legislation or a court or Fair Work Commission order. Employers should check the award or agreement to find out when deductions can be made. Underpayment Employees must be paid at least their minimum pay rates and entitlements. Like overpayments, underpayments often happen because of a mistake or payroll error. Employers who fail to fix the errors promptly and prevent them from recurring face serious penalties. Effective 1 January 2025, intentional underpayment of wages by employers is a criminal offence in all jurisdictions of Australia. The process for fixing an underpayment is: 1. Work out how long the employee was underpaid 2. Work out how much the employee was paid and what they were entitled to be paid 3. Calculate how much the employee has been underpaid 4. Discuss with the employee and confirm back payment arrangements 5. Make any adjustments in the payroll that are required. 6. Keep up to date with future wage increases. The new financial year and the new calendar year are optimal times to review your HR systems and processes to ensure you are paying your staff correctly. This can include checking new pay rates and superannuation requirements, reviewing employment contracts and agreements, and auditing your payroll transactions. For more information or tailored support, please contact us today.

As social media increasingly permeates our lives, the lines between “personal” and “professional”, “private” and “public” have become blurred. A person’s right to freedom of expression may be perceived as inappropriate conduct by their employer or coworker. This can be harmful to a brand, reputation and business relationships, and people can lose their jobs. It is no longer unusual to see media reports of cases where employees are dismissed or forced to resign because of comments or images they posted on their personal social media accounts. Employees typically risk getting into trouble when they post offensive, inappropriate or defamatory comments post controversial or extreme opinions or images tell work they are sick then post photos of their big night out Does your workplace have a social media policy? Employers who take a strict stance on social media conduct may find themselves facing a legal dispute if they don’t have the proper policies and contractual clauses in place. By now, every employer should have an up-to-date social media policy. Review your social media policy regularly, to make sure it stays relevant to today’s online culture, which is perpetually and rapidly evolving. Social media and workplace discrimination Social media posts can be against the law if they harass, bully, racially vilify or discriminate against someone. The Australian Human Rights Commission website warns employers that social media postings can be against the law if they discriminate against, harass, bully or racially vilify a person. “Employers can be held legally responsible for acts of discrimination or harassment that occur in the workplace or in connection with a person’s employment. This can include posts and comments made or circulated on social media. To minimise their liability, employers need to demonstrate that they have taken all reasonable steps to prevent discrimination or harassment from occurring in their workplaces.” ~ Australian Human Rights Commission In the case of Little v Credit Corp Group Limited t/as Credit Corp Group [2013] FWC 9642, Mr. Little used his personal Facebook account to criticise a professional associate of his employer, and to make sexual comments about a new employee. This was a breach of the employer’s policy on appropriate social media conduct. Mr. Little was aware of and had received training about the policy. The termination of Mr. Little’s employment for misuse of social media in breach of the policy was held to be valid. Sometimes social media works in the employer’s favour. This good news story about an employee taking a mental health day went viral . Good to see top management sending a clear message to their employees, encouraging a mentally healthy workplace. In this case, the use of social media resulted in good press for the company. Interesting though, how rapidly the contents of an internal company email went viral via Twitter. Damaging comments about employers, employees or coworkers can go just as viral, with potentially disastrous consequences. Employers can manage the risk of workplace disputes and claims of harassment or discrimination by educating their staff on appropriate conduct on social media. This should include policies and training addressing discrimination and harassment in the use of social media. It is also wise to include policies and discussions around organisational values and avoiding reputational damage. Read Respect & responsibility in the workplace > How do you know whether or not a serious breach has occurred? If you receive a verbal or written workplace grievance, complaint or allegation regarding an employee’s social media conduct, you are obliged to investigate the issue to find out what happened and determine whether a breach has occurred. Read How to spot bullying in your workplace > Whether the investigation is conducted internally or externally, it must adhere to natural justice principles, confidentiality, rules of evidence, legal and policy compliance, and health and safety regulations. These standards help to ensure a fair and equitable process for all and allow your organisation to respond with the appropriate action. WorkPlacePLUS has a team of experienced certified private investigators who provide independent workplace investigations of the highest standard. We assist in mitigating an employer’s obligations under various legislation such as Fair Work Act and Workplace, Health & Safety, while you continue to focus on business as usual. We value continuous improvement, so we also provide follow-up support to implement recommendations and restore harmony and productivity. Read Respect and responsibility in the workplace > For more information, please contact us today.

Following a steady flow of high-profile workplace sexual assault allegations reported in the media earlier this year, the Victorian government announced a new taskforce to develop reforms that will prevent and better respond to workplace sexual harassment. This will include a mandatory incident notification scheme requiring employers to report misconduct to authorities such as WorkSafe. In addition, based on recent amendments to the Fair Work Act 2009 , an employee who reasonably believes they have been sexually harassed can now apply for the Fair Work Commission (FWC) to intervene by issuing a "stop sexual harassment" order. These new FWC powers, which commenced on 11 November 2021, are one of the outcomes of the Sex Discrimination and Fair Work (Respect at Work) Amendment Act 2021. Employers nation-wide are already obligated under work, health and safety (WHS) laws to provide a safe working environment, which includes the prevention of workplace bullying and harassment. Both Victoria's proposed mandatory incident notification scheme and the new nation-wide changes from the Respect at Work Act are turning up the heat on employers to do the right thing and respond appropriately to complaints of workplace misconduct. Regardless of your state or jurisdiction, or the size or sector of your workplace, these are the three key areas that every employer needs to proactively manage: 1. WHS policies and procedures. This includes knowing how to implement and enforce your bullying & harassment policy, your code of conduct and ethics, your mental health strategy, your complaints & grievances policy, your performance management policy, your conflict resolution process, and your disciplinary process. Providing regular training sessions to all employees, including the senior leadership level, is an important factor in ensuring that everyone understands the rules and expectations in your workplace. 2. Procedural fairness. This is the ethical, best practice way of handling workplace conflict. It is not enough to pay lip service to your “zero tolerance” policy. Employers need to take complaints seriously, respond in a timely manner, conduct a fair and confidential workplace investigation, follow a communication plan to discuss the matter, give the parties involved plenty of notice and time to prepare and respond, offer the parties the option to bring a support person, and provide a timeframe for any decisions or further action. Hiring an independent workplace investigator may the most suitable option for some employers. 3. Risk and workplace culture. It is important that employers dig deeper to uncover the underlying issues that are causing incidents of misconduct to occur. Risk management is a stepped process of identifying hazards, assessing risks, controlling those risks and then reviewing the efficacy of control measures over time or in response to an event. Regular cultural reviews allow employers, senior management and the board to proactively identify and mitigate any potential red flags or common themes that may need to be addressed. Read Tools for resolving workplace conflict > As discussions around workplace sexual harassment unfold in the media, and the consultation process for the proposed mandatory incident notification scheme is underway, employers are reminded to consider ways to take better care of your employees, including responding appropriately when issues or concerns arise. For more information, or to receive tailored advice, please contact us today.

In the current climate of the pandemic, some healthcare and community care employers are facing workforce shortages and finding it difficult to attract and retain staff. Small business and private practice owners in particular are struggling to compete with the salaries and incentives offered by larger organisations. Food for thought: As an employment incentive, employers can consider offering paid maternity and parental leave. It is important that employers are aware of their obligations regarding maternity and parental leave. The minimum legal requirement under the Fair Work Act is that employees (including long-term casuals) who have worked with their employer for more than 12 months can take unpaid parental leave when they or their partner give birth or adopt a child. They can also request up to a total of 24 months of unpaid parental leave. This minimum legal requirement includes a guarantee that the employee can return to their job after they complete their leave. However, employers can choose to take best practice initiatives, above and beyond their minimum legal requirements. For example, providing a period of employer-funded paid parental leave can assist employees who are pregnant, on parental leave or returning to work. This type of best practice initiative can also help attract and retain new employees who may be considering or planning to start a family. According to the Australian Government’s Workplace Gender Equality Agency (WGEA), t he positive outcomes of paid parental leave span beyond attracting and retaining skilled workers. For example, the WGEA reports that “the availability of paid parental leave for each parent fosters an equal division of unpaid care and improves family work-life balance.” 1 This could be an important consideration for employers who are endeavouring to foster and maintain a mentally healthy workplace. It is important to have a workplace policy that outlines your approach to parental leave and the employer and employee obligations. Your parental leave policy should include detailed information on the following considerations: the employee’s leave entitlements, including unpaid parental leave, government funded paid parental leave and any employer-funded benefits the employee’s requirements on giving notice the transition arrangements for taking leave and returning to work the communication process for keeping in touch during the leave period the options for flexible working arrangements Paid parental leave is one example of a wide range of best practice initiatives and employee incentives which can be provided at the employer’s discretion. For tailored advice on your emp loyer obligations and best practice initiatives to attract and retain staff, please contact us to day.

It’s important for leadership to be proactive in fostering the workplace culture, rather than letting it evolve without direction or intention. A positive workplace culture drives staff engagement, satisfaction and performance, and attracts talent and clientele. A tense, negative or toxic workplace culture puts you and your staff at risk of costly mistakes, low productivity, high staff turnover, complaints or grievances, which ultimately has a negative impact on your organisation’s performance. Attending to your workplace culture on a regular basis should be a fundamental part of your risk management plan. It can take 3-5 years to create a long-lasting positive change to workplace culture but only a couple of days to ruin it. Leaders who fail to make culture count in their organisation will inevitably face the serious issues associated with a toxic workplace culture. Our advice to employers, directors, executives and HR Managers is to take a holistic approach to achieving your desired organisational culture. This means looking at the whole picture and using a range of tools and strategies. Read Workplace Cultural Reviews > MAKING CULTURE COUNT is a training and development program offered by WorkPlacePLUS, designed to support leaders to proactively and consistently manage their workplace culture, including how to identify and mitigate the risks of a toxic workplace. This program includes best practice tools for managing workplace conflict and fostering long term cultural change. Read Programs for leaders + teams > For more information, please contact us today.

“Most of us spend more than a third of our lives at work. This is why the World Health Organization recognises the workplace as an important place to support and promote health and wellbeing.” – Women’s Health Week website Unsurprisingly, women make up almost half of the Australian workforce. When it comes to supporting the health and wellbeing of female staff, there are a number of areas that employers should consider: Physical Activity Too much sitting can increase the risk of weight gain, high blood pressure and chronic illnesses such as type 2 diabetes. Employers can encourage their employees to move more at work. This Better Health web page includes tips for staying active in the workplace . Mental Health According to SafeWorkAustralia, work-related mental health conditions have become a major concern in Australian workplaces. Under Workplace Health & Safety legislation, employers have a duty to prevent mental injury and provide a mentally healthy workplace. Read 5 management tips to promote a mentally healthy workplace > Health Checks Women’s health checks can save lives by assisting in the prevention and early detection of health issues such as breast cancer, cervical cancer and bone health. Employers can arrange onsite health checks for their employees or include them in their workplace health and wellbeing program. Click here to download a printable poster on health checks for women. Read 10 tips for supporting men’s health in the workplace > New Parents New mothers are returning to work sooner – according to the Australian Bureau of Statistics, 23% of Australian mothers with a 3-5 month old baby are in paid employment. Employees who are new parents are likely to be facing exhaustion and other physical or psychological difficulties. Managers may need to assist these staff members with navigating their workplace support options, such as parental leave, employee assistance and flexible working arrangements. Menopause Menopause can be a significant life transition for women. Employers may need offer work adjustments or greater flexibility to women who are dealing with menopausal symptoms which may be causing difficulties for them at work, such as hot flushes, sleep issues, fatigue or anxiety. Learn about the Menopause Information Pack for Organisations . Family & Domestic Violence According to the Australian Human Rights Commission, domestic and family violence is the leading contributor to death, illness and disability in women aged 15 to 44 years. Workplaces are uniquely positioned to provide support, from workplace trainings and domestic violence policies, to financial assistance, flexible working arrangements and referrals to specialised support services. Read Family & Domestic Violence may be affecting your employees > Confidential support regarding domestic and family violence is available at 1800respect.org.au . Making It Work Some women navigate a range of different struggles alongside their work responsibilities, such as IVF treatment or chronic illness. It is helpful for employers to develop their understanding of these issues. Read more on this Jean Hailes Women's Health Week page . It's important to check in on the wellbeing of your employees and offer a range of support. Regular 1:1 communication, planned group discussions, wellness and movement sessions, cultural climate surveys and a holistic, integrated employee assistance program are examples of proactive tools and strategies you can implement in your workplace. Read Tools for workplace wellness > WorkPlacePLUS provides a range of HR services that can help you promote a healthy workplace culture. For more information, please contact us today.