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.

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.

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.

The Four Corners television episode “Health Hazard” exposed catastrophic failures in Australia’s health care system, particularly in regional and rural hospitals where patients have died or been permanently disabled due to medical mistakes. The TV report by Louise Milligan, which aired 9th September 2019 on the ABC, revealed under-resourced regional hospitals with staff run off their feet and grave concerns for clinical governance and patient safety. “I spoke to the general manager, I said that I was concerned about the culture in the department, that staff weren't listening, and I felt that if we didn't try and change this culture, there could be a catastrophic event.” - Max McLean (Former Nursing Manager, Broken Hill Base Hospital) The alarming statistics and heartbreaking stories revealed in this program leave many of us wanting to know what is being done to fix the problem. “The one thing we can do, if we can't have more people and more resources, is to try and look at how we do it and put in place exacting protocols and check lists and drill people in these, and support each other, and say speak up when you see something that isn't what it should be." - Dr Gabriel Khouri (General Practitioner Anesthetist, former Director of Critical Care, Bega Hospital) Attending to the workplace culture should be a regular part of every organisation’s risk management plan. Regional hospitals in Australia can start by undertaking a workplace cultural review, which is a proactive process designed to understand the values, beliefs, attitudes, and behaviours shared by the staff. This information can be the catalyst for change. ​ When structural or cultural change is needed in a high-pressure workplace such as a hospital or an emergency department, this can be very challenging for leadership and all members of staff. Doing nothing can have severe consequences and is not an option. WorkPlacePLUS has a team of HR consultants who are experienced at facilitating cultural reviews , strategic planning and organisational change in hospitals and healthcare settings. For more information, please contact us today.

The 3 Arms of Conflict Resolution The phrase “toxic workplace culture” continues to emerge in current affairs. It is always concerning to see cases where Directors and Management have allowed workplace issues to escalate to the point where their “toxic” workplace culture makes headlines. The key to dealing appropriately with conflict or grievances in the workplace is to address the issues immediately rather than do nothing and hope it resolves itself. To accomplish this, leaders and managers need the emotional intelligence and communication skills to recognise that something isn’t right and try to find out what’s going on. Unfortunately, managers and supervisors are often ill-equipped to handle conflict in the workplace. Sometimes the manager or supervisor may be seen as having a bias. In these cases, it is best practice for the employer to seek independent assistance to investigate the possible issues. There are three main phases of conflict resolution in the workplace: 1. Investigation When an employer receives a verbal or written complaint, for example an allegation of bullying or harassment, they are obliged to investigate the issue to determine what actually happened and whether a breach has occurred. An independent workplace investigator brings unbiased investigative expertise and can recommend a plan for continuous improvement. 2. Mediation / Intervention / Group Facilitation Mediation creates a safe space for people to delve into the deeper issues and navigate towards a resolution. An experienced mediator is able to identify where relationships have an undercurrent, or when particular issues need to be discussed. Group facilitation is particularly useful when there are issues or underlying conflict within a team of employees. 3. Communication, Training & Development This third phase of conflict resolution is essential for creating a sustainable culture shift within your organisation. Effective communication and management skills can be learned and developed with the proper tools and training. In addition to improving their communication skills, managers need to stay up to date with legal requirements around handling grievances, discrimination, bullying and harassment and creating a safe working environment. All employees should receive regular training on organisational values and appropriate workplace conduct. WorkPlacePLUS has a qualified team of consultants with extensive experience in conducting unbiased evidence based workplace investigations. To help you resolve complex workplace issues, WorkPlacePLUS provides mediation services with a commitment to continuous improvement and strengthening teams. Our skilled mediators are certified to perform court-mandated mediation under the National Mediation Accreditation System. For more information, please contact us today.

The R U OK campaign encourages us to check in on people who may be struggling with life and help them feel connected long before they even think about suicide. It all comes down to regular, face-to-face, meaningful conversations about life. And asking “Are you ok?” is a great place to start. In a professional environment, depending on your workplace culture, it may not be common practice to discuss personal issues with your colleagues or staff. But if you notice that someone seems to be out-of-sorts or struggling in some way, offering your support and asking “Are you okay?” could make an important difference to that person. The significant challenges and difficult circumstances we have all faced over the past few years amplify the importance of staying connected and being as supportive as we can to the people in our lives. You don’t have to be an expert to keep the conversation going when someone says they’re not OK. By knowing what to say you can help someone feel supported and access appropriate help long before they’re in crisis, which can make a really positive difference to their life. However, when asking “Are you ok?” at work, be prepared to follow up appropriately by knowing what support services and resources are available. If someone confides that they are not okay, and you do nothing about it, you could be found negligent of your duty of care as a manager or employer. Also, when you receive an allegation or complaint regarding a workplace incident, your first response should be to enquire whether your staff member is okay. Bypassing this gesture could again put you at risk of being found negligent of your duty of care. The R U OK? website contains a wealth of information and resources on how to check in with your work colleague who may be struggling, including detailed instructions on how to ask. If they say they are not ok, you can follow the conversation steps in the infographic below to show them they’re supported and help them find strategies to better manage the load. If they are ok, that person will know you’re someone who cares enough to ask. Worried someone might be suicidal? Contact Lifeline for crisis support. If life is in danger, call 000. Dealing with people and managing risks within an organisation can be complex. WorkPlacePLUS provides integrated human resource services including tools for workplace wellness . For more information , please contact us today.

Dear WorkPlacePLUS Community, Throughout the month of October, WorkPlacePLUS has been celebrating a milestone – five years in business! Five years ago, after 20+ years as a senior HR manager, I decided to step out on my own and start an integrated HR consultancy. I knew this was the best way for me to help employers to achieve their goals. For five years, WorkPlacePLUS has been supporting and assisting Australian employers to navigate all the complexities, benefits and risks that go hand in hand with employing staff. And we're still going strong! When I look at how WorkPlacePLUS has grown over the past 5 years, I feel very proud of our hard-working team and the meaningful work that we do. I cannot thank the WorkPlacePLUS team enough for their talent, professionalism and camaraderie. As a part of our birthday celebrations, WorkPlacePLUS hosted a terrific team appreciation day: I would like to extend my very special thanks to our valued clients for supporting WorkPlacePLUS. Many of our clients are not-for-profit organisations dedicated to helping and caring for Australians in need. Some of our clients already have an HR department, but require unbiased support for managing organisational change or resolving conflict. Other clients operate in small teams with limited resources, so they rely on having flexible access to our services. All of our business relationships are built on trust and transparency. Engaging an experienced HR consultant from WorkPlacePLUS has proven to be an effective way for our clients to meet their employer obligations without diverting their team’s focus away from their primary roles. To help mark the occasion of our business birthday, WorkPlacePLUS has launched a video – please check it out (with the sound on) and share it with your colleagues and professional network. I would love to get your feedback! I hope this video might spark some valuable conversations within your workplace. If it’s got you thinking about your own workplace culture, let’s chat. You can reach me on (03) 9492 0958 or via our contact page . Kindest regards, Anna Pannuzzo Director, WorkPlacePLUS