Employment Law - Staff Solutions Pty Ltd - Assignment Example

EMPLOYMENT LAW By Name Course Instructor Institution City/State Date Table of Contents Employment Law 1.0 HR Manager’s Report 1.1 Employment Law Compliance across the Business Staff Solutions Pty Ltd (SS) has over 170 employees; therefore, it is imperative for Alexis Ambrose (AA) to comply with the existing Australia employment laws. The Fair Work Regulations 2009, as well as Fair Work Act 2009, are the main laws that SS should cope with. These laws govern the relationship between employer and employees across Australia. In addition, they allow for flexible working arrangements, offer a safety net of minimum entitlements, promote fairness at the workplace, and protect employees from any form of discrimination. A number of businesses such as7-Eleven stores have recently been investigated by Fair Work Ombudsman’s (FWO) for false record-keeping practices and employees; underpayment. Such events as mentioned by Kelleher and Churilova (2015) forced the founder and chairman of 7-Eleven to openly accept responsibility and direct the senior executives as well as board to solve the problem. Still, besides the considerable negative public relations attributed to FWO investigations, 7-Eleven could be penalised approximately $54,000 per violation and its officers and directors could each be subject to penalties of approximately $10,800 per breach. In the view of this, SS could be subjected to these penalties and its reputation could be tarnished because of FWO investigations. Another example associated with SS is the most recent FWO’s investigation of labour procurement processes at Baiada Group's, where numerous instances of non-compliance were exposed. Although the non-compliance is attributed to the contractors, Baiada had an agreement with the FWO that it would pay $500, to rectify underpayments by its subcontractors and contractors in case the latter does not rectify the underpayments (Kelleher & Churilova, 2015). With the view to the above case studies, AA as the managing director of SS should take a number of steps to reduce the risks of being liable for the employment arrangements of the company’s contractors. The first step is including provisions in the contractual arrangements in order to necessitate adherence to the employment legislation, consent to random contractors' employment records inspection as well as facilitate internal and external audits to make sure there is compliance. More importantly, the company c an include termination and indemnities rights for non-compliance. SS should understand that every employee except the casual workers has a right to a paid annual leave (four weeks) for every year of service. As demonstrated by Chris Carr (CC), annual leave accrues gradually and have to be taken for the agreed period of time between the employer and employee. SS is obliged to offer a ‘Fair Work Information Statement’ to every employee detailing information regarding numerous matters, such as the description of modern awards, National Employment Standards, workplace collective agreement, employment termination as well as the right to enter a trade union. 1.2 Underpayment In view of Fair Work Act, all employers must issue pay slips (electronically or in hard copy) to the employees within one working day after their payday, even when they are on leave. More importantly, AA should understand that all workers under the enterprise award (modern award) are entitled to minimum wage as stipulated in that specific award. For the employees not covered by the modern award, a national minimum wage has been set out by the National Employment Standards. They are specifically senior employees, such as executives, mangers, and professional employees like IT specialists, marketers and accountants. Employers are allowed to express the wages of the employees as an overall annual salary with entitlements like penalties as well as overtime integrated into it. The modern awards normally have provisions associated with the way and timing of the wages payment. Employers have been prohibited by the Fair Work Act from deducting employees’ money devoid of the written authorisation. More importantly, the agreement has to spell out the deduction amount and it should mainly be for the benefit of the employees. There have been numerous cases of underpayment in Australia; for instance, in FWO v Mamak Pty Ltd & Ors the defendant (Mamak), an iconic restaurant chain failed to defend an application made by FWO on behalf of the restaurant’s six employees. Mamak together with its three directors together with the shareholders were found guilty for contravening the Fair Work Act by failing to pay the six employees a correct salary. For that reason, Mamak was ordered by the presiding judge to pay penalties amounting to AUD184, 960 while the directors were fined AUD36, 992 (Joon Hoe Lee), and AUD35, 360 (Alan Wing-Keung Au and Julian Lee) each. Besides that, the Judge ordered that Mamak should engage a third party with workplace relations or accounting qualifications with the aim of auditing the company’s observance to the Restaurant Industry Award 2010 (Award) as well as Fair Work Act. After the completion of the audit, Mamak should offer FWO information of additional breaches, of any and also the steps espoused with the aim of rectifying those breaches. Mamak was found guilty for deliberately underpaying six employees, failing to keep records of its employees as required by the Regulations, supplying misleading and false employee records, and failing to provide a copy of the Award to the workers. From this case, it evident that AA have to ensure that all employees’ payments are in line with the applicable industrial award except if there is an individual flexibility arrangement or the workers are governed the by enterprise agreement. More importantly, the Fair Work Act and Regulations requires all employees to maintain employee records that contain: the name of the employer and employees; the status of the job (permanent, casual, or temporary) and if they are part-timers or full-timers; when the employee started working; and employers’ Australian Business number. Breaching the Act and Regulations as demonstrated in Mamak case could attract penalties against any directors and the employers (Smith, 2015). As pointed out by Munro (2011) an employee could file a complaint to the Fair Work Ombudsman if he/she is underpaid. 1.3 Lack of Formal Policies and Procedures In the modern-day workplace, the need for workplace policies and procedures that are effective has become more and more important. This is mainly driven by changes to codes of practice, regulation as well as legislation. For instance, the industrial relations legislation was recently changed; thus, moving towards the national system leading to the materialisation of workplace issues of unfair dismissals, workplace rights and discrimination which have to be covered through effective policies. The Fair Work Act tries to handle issues such as underpayment, leave entitlements, and so forth. Every business organisation must have policies and procedures anchored in the best employment practices and enabling the organisation to meet minimum obligations as well as adhere to the new industrial relations system. AA should ensure that SS has workplace policies, which are statements of practices and principles that focus on the ongoing organisation administration and management. At SS, policies would serve as a guiding reference frame for how the company would handle everything from its daily operational challenges or ways to meet requirements to abide by codes of practice, regulation and legislation. Furthermore, it is imperative for the policies to be practical, that workers understand clearly what the policy seeks to achieve. AA should understand that as a statement of purpose, policies highlight extensive guidelines on the action that SS would take to realise this purpose. On the other hand, procedures make clear how to carry out duties and tasks. Basically, a procedure could detail who in the company is in charge of certain activities and tasks, or how they must perform their duties. Having workplace policies and procedures would be beneficial to SS since they are in line with the organisation values as well as employment legislation. They also exhibit that the organisation is operated in a businesslike and efficient and manner and ensure consistency as well as uniformity in operational procedures and decision-making practices. 1.4 Employment contracts and Unfair Dismissal The Fair Work Act together with the Independent Contractors Act 2006 protects the entitlements as we; as rights of independent contractors. When the employment contract is being negotiated, Patricia Plump (PP) did not know that contractual arrangements have to be specific to the parties and individual going into the arrangement. The employer (SS) should have structured a contract that meets the needs of PP and other people involved. PP as an independent contractor because she runs her own business and she cannot be considered an employee of SS because she is not entitled to paid leave and her work is directed but not controlled by SS. She is an Independent contractor because she used her own equipment and tools and has a high control level over how the work is done. PP legal action for unfair dismissal will be dismissed because she has registered a business and she is running her own business, therefore, she will be considered as a contractor. PP is not covered under unfair dismissal laws because she engaged with SS on a specified term contract and the ending of the employment was through failure by SS to renew the contract its expiry. Without a doubt, the court would characterise PP as an independent contractor rather than an employee. 1.5 Flexible Working Arrangements According to Fair Work Act, Ben Buttrose (BB) has a legal right to ask for flexible working arrangements. However, for BB to be eligible he should have worked for SS for more than one year on either a part-time or full-time basis. Employees, according to Fair Work Act, are eligible to apply for flexible working arrangements when he/she is a parent or is caring for a younger or school age child, he/she is a care giver, is aged above 55 years, or a victim of family violence (Fair Work Ombudsman, 2016). Basically, flexible working arrangements enable the workers to achieve work-life balance. For instance, it would enable BB to manage the demands that are associated with being a parent of young children, like dropping-off and picking-up at childcare. Flexible working arrangements could be beneficial to SS since it reduces absenteeism, improves employee retention and job satisfaction, and also improves employee productivity. 2.0 News Articles 2.1 “High Time Exploitation and Underpayment of Workers Stamped out” In this editorial article, the author place emphasis on how young and foreign workers are being exploited in Australia. The author cites an investigation by Fairfax Media that exposed the exploitation as well as underpayment of employees in Australia’s best-known as well as largest retail and hospitality companies: Caltex, Woolworths, Coles, 7-Eleven and McDonald's. Underpayment can be defined as a situation where the employer does not pay the minimum wage, which includes allowances as prescribed under an agreement or award. Therefore, the employers mentioned in paragraph one, the employers have breached Fair Work Act and they can be prosecuted with the aim of recovering the underpaid amounts. Furthermore, penalties could as well apply. I have personally seen my friends from countries like Korea and China who have come to study in Australia being lured to underpaying jobs and living in overcrowded hovels. Most of them are working hard in restaurants under brutal conditions and being paid as little as $9 an hour. Furthermore, most of them do not have a contract, and sometimes their passports are seized to ensure they do not leave. A number of restaurants such as Bakers Delight, as mentioned in paragraph two, are utilising an outdated Enterprise Bargaining Agreement (EBA) as a justification for paying their workers as little as $8 an hour. This behaviour, according to The Age (2017) was justified partly by arguing that the companies have offered ‘flexibility’ to its workers. Bakers Delight believed that the EBA was reasonable and fair. EBA can be defined as a collective industrial agreement between employees and employers or between trade unions and employers. In this case, the trade union act on behalf of the workers. Other companies like Swimland franchise network have also been implicated in a breach of employment law for underpaying its young employees. However, Swimland argued that underpayment was caused by human error and poor manual processes and insisted that it had paid back the majority of these workers. However, the company has puzzlingly adopted work practices, like making some employees renew their contract after every 10 weeks. In paragraph six, the fruit-picking industry in the rural Victoria has breached Fair Work Act and regulation for exploiting and underpaying the foreign workers underpins. Most of these workers are in Australia illegally and it is hard to protect them from exploitation. Startlingly, a number of fruit pickers are paid $2.50 an hour and are coerced to endure poor working conditions and accommodation. For instance, Rocky Lamattina & Sons were accused of systematically underpaying all its employees. Sadly, established companies like Woolworths, Coles, and Costco have been selling fruit supplied by companies that exploit their workers. Underpayment issue is out of control in Australia since it has manifested in many industries such as restaurants, entertainment, cleaning and many others. Most of these companies are underpaying its workers with the sole aim of improving their profitability. I believe the underpayment of wages is a plague that needs to be controlled by increasing the penalties for employers failing to pay the minimum wages and allowances as stipulated under Fair Work Act. Trainees and apprentice have become vulnerable to the underpaying employees. The Fair Work Australia provides a lot of resources to the employers for matters such as leave entitlements and calculating payroll. Thanks to the existing Employment laws, some of the underpaid workers, as exhibited in paragraph 12, have been paid the entitled full wages, but the lack of penalties and fines and for employers underpaying workers continue to present an enormous challenge. Given that the regulator lacks the power to control the employers, most of the companies are being tempted to join the ‘game’. Fairfax persistent exposure has coerced a number of companies like 7-Eleven to repay their workers, but when the media exert less pressure, it becomes difficult for the public to know the illegal practices of many companies (The Age, 2017). 2.2 “Bullying of Part-Timers Pushing Women Out of Police Force” This article demonstrates how the police forces are struggling to retain women because of bullying from other officers. According to Fair Work Act, employees are bullied at work when people continually act unreasonably towards a group of workers and the behaviour results in a safety and health issues. In this case, unreasonable behaviour involves victimisation, intimidation, humiliation or threats. The unreasonableness of behaviour relies on whether someone reasonable perceives the behaviour as unreasonable. Examples of bullying in the workplace include unreasonable work demands, practical or teasing jokes, aggressive behaviour, and pressuring a person to behave improperly. In a survey that involved over 11,000 police, a third of officers (mainly women) on family-flexible hours, as highlighted in paragraph 3, claimed that they have been victimised for their work choices. Clearly, the Australia police forces understand that flexible arrangements as stipulated under the Fair Work Act is crucial for improving police officers morale, productivity, and motivation. More importantly, it reduces absenteeism, staff turnover, as well as staffing costs. I believe it is inappropriate for police officers to be bullied for requesting flexible work arrangements since it is legal and comes from the National Employment Standards in Act and is covered by every person under the national workplace relations system. The study by the Police Federation established that female officers, averagely quit their jobs after seven years of service. As mentioned by Willingham (2017) in paragraph four, having a work environment that is more flexible is crucial for retention of many female officers. I concur with Police Federation that creating a more flexible workplace could enable the employers to retain its skilled employees and eventually make the organisation more competitive. Flexibility options would undoubtedly create a healthier and happier police force. Bullying of police officers that have requested for flexible options has compelled the Police forces to show commitment toward fifty-fifty quotas of female officers. However, it will be difficult to achieve this objective unless suitable mechanisms are implemented in the policing in order to allow as well as encourage female officers to remain in the service. As indicated in paragraph seven, women statistically account for 25% of police in Australia, but the percentage drops as is much less for senior ranks. In their survey, the Police Federation established that flexible work arrangements were the major obstacle to training and promotion. They survey established that most of the police officers working part-time at the national level are aged between 30 and 49 with women accounting for 80% (Willingham, 2017). The survey respondents mentioned that the bullying-related behaviours are associated with a culture where police consider their work as the first priority before anything else. I think that the instances of bullying at police force are deliberate acts meant to cause psychological distress since it includes behaviours such as intimidation, humiliation and degradation of the female worker. In paragraph 10, gender segregation at the place of work became a topic of discussion in the parliament since it influences economic equality of women across Australia. Most of these female officers return to their jobs because of the unaffordable childcare and prefer working on a part-time basis because of the irregular working hours in the police force. The flexible work arrangements have made it difficult for the female officers to training and also get promoted. Many of them are given little work because as part-timers they cannot easily progress their careers, and while junior officers with no experience are given promotional opportunities, they are normally overlooked. In paragraph 14, the Police Federation believes that this problem can be solved amicably by improving parental leave and accessibility of flexible and cheap child care. The process of recruitment has to be fair and female officers should be encouraged to apply for senior positions. Bullying female officers because they are part-timers or due to their work choices is a breach to Fair Work Ac, it underlines that all Australian workers are entitled to parental leave. The Act specifies that all employees are entitled to flexible work arrangements, especially if they have a responsibility for child care. The Act further specifies that flexible working arrangements enable the workers to achieve work-life balance; thus, making it easy for parents such as female officers to care for their children. The right to ask for flexible working arrangements have been enshrined in section 65 of the Fair Work Act and it involves moving from full-time to part-time work. As mentioned above, flexible options result in a mutually beneficial outcome and employers and employees must work together in order to best manage such needs. References Fair Work Ombudsman, 2016. The right to request flexible working arrangements. [Online] Available at: HYPERLINK "https://www.fairwork.gov.au/how-we-will-help/templates-and-guides/best-practice-guides/the-right-to-request-flexible-working-arrangements" https://www.fairwork.gov.au/how-we-will-help/templates-and-guides/best-practice-guides/the-right-to-request-flexible-working-arrangements [Accessed 18 April 2017]. Kelleher, R. & Churilova, P., 2015. Your liability for non-compliance of your contractors with employment laws. [Online] Available at: HYPERLINK "http://www.jws.com.au/en/acumen/item/699-your-liability-for-non-compliance-of-your-contractors-with-employment-laws" http://www.jws.com.au/en/acumen/item/699-your-liability-for-non-compliance-of-your-contractors-with-employment-laws [Accessed 18 April 2017]. Munro, P., 2011. Underpayment of wages and Fair Work legislation. [Online] Available at: HYPERLINK "http://workplaceinfo.com.au/payroll/payroll-management/analysis/underpayment-of-wages-and-fair-work-legislation" http://workplaceinfo.com.au/payroll/payroll-management/analysis/underpayment-of-wages-and-fair-work-legislation [Accessed 18 April 2017]. Smith, C., 2015. Australia - Underpayment Of Employees By Established Sydney Restaurant Chain. [Online] Available at: HYPERLINK "http://www.conventuslaw.com/report/australia-underpayment-of-employees-by-established/" http://www.conventuslaw.com/report/australia-underpayment-of-employees-by-established/ [Accessed 18 April 2017]. The Age, 2017. High time exploitation and underpayment of workers stamped out. [Online] Available at: HYPERLINK "http://www.theage.com.au/comment/the-age-editorial/high-time-exploitation-and-underpayment-of-workers-stamped-out-20170102-gtkwdm.html" http://www.theage.com.au/comment/the-age-editorial/high-time-exploitation-and-underpayment-of-workers-stamped-out-20170102-gtkwdm.html [Accessed 19 April 2017]. Willingham, R., 2017. Bullying of part-timers pushing women out of police force. [Online] Available at: HYPERLINK "http://www.theage.com.au/victoria/bullying-of-parttimers-pushing-women-out-of-police-force-20170410-gvhvu7.html" http://www.theage.com.au/victoria/bullying-of-parttimers-pushing-women-out-of-police-force-20170410-gvhvu7.html [Accessed 19 April 2017]. Read More