Workplace Relations Seminar - Wednesday 20 July 2016

[Insert image here to match your presentation – contact Meg in BD to

obtain images]

Five things you may be doing wrong in recruitment

Libby Pallot and Abbey SuttonWorkplace Relations, Employment and SafetyRussell Kennedy Lawyers

20 July 2016

##Insert FileSite Doc ID

>Asking the right questions

>Giving the right documents to employees (and in the right order)

>Dismissing employees during probation

>Changing your mind after making an offer

> Insourcing risks

Key topics to be covered today

2

Asking the right questions

> It is unlawful to discriminate against potential employees in certain circumstances:> Fair Work Act 2009> State and Federal discrimination legislation> Exceptions and exemptions apply

>Asking a question indicates that you need to know the answer and will act on it

Why should I be concerned?

4

>Employers must not take "adverse action" against a prospective employee or contractor due to protected attributes

>Adverse action includes refusing to offer employment, or offering different terms or conditions employment, because of a protected attribute

>Reverse onus of proof applies, penalties and damages

General Protections

5

>Similar to Fair Work Act 2009>May include other protected attributes,

eg criminal record

>Reverse onus of proof does not apply, no penalties

>Wider application eg service providers, clubs and accommodation

State & Federal legislation

6

> race or colour

> sex or sexual orientation

> age

> physical or mental disability

> marital status

> family or carer's responsibilities

> pregnancy

> religion

> political opinion

> national extraction

> social origin

> union membership and activity

> temporary absence due to illness or injury

> criminal record (some States)

Protected attributes

7

>Other general prohibitions eg> Equal Opportunity Act 2010 (Vic): a

person must not request or require information which could be used to discriminate

> Disability Discrimination Act 1992 (Cth): a person must not request or require information connection with a disability if others in same circumstances not asked

State & Federal legislation

8

>Prospective employer may have grounds to ask and require information > Inherent requirements of the role – eg

physical – can you bend, lift, drive or mental – can you work under pressure?

> Genuine occupational requirement – eg criminal record when working in aged care or with children, age when working in licensed premises, pregnancy when working with hazardous chemicals

Exceptions

9

>Can apply for exemptions to comply with certain legislation> Request to advertise for job

applications from one gender only eg women’s refuge

> Request for information in relation to race eg national security

Exemptions

10

What questions should I be careful about asking candidates?

>Only ask questions you need to know the answer to based on:> the requirements of the role including

duties, working environment and terms and conditions of employment

> any reasonable adjustments which may be required

> workplace health and safety

Irrelevant questions

12

> Don’t ask: Do you have family responsibilities?

> Do ask: The role requires overtime and interstate travel, can you commit to being available?

> Don’t ask: What nationality are you?

> Do ask: Do you have the right to work in Australia

Examples

13

>Don’t ask: Have you previously filed a claim for workers compensation?

>Do ask: This role requires you to bend, lift, drive, work under pressure, do you have any pre-existing injuries which may impact on your ability to do undertake this role?

Examples

14

>Don’t ask: Are you a member of a particular political party or church?

>Do ask: Our organisation advocates particular beliefs, do you have any difficulty working within this environment?

Examples

15

>Questions unrelated to protected attributes are acceptable:> Did you have trouble getting here?

> What did you do on the weekend?

> Do you have any hobbies?

>Claims can be defended on the basis that there is a more suitable candidate

>Privacy obligations

BUT remember

16

• Claim for adverse action, discrimination

• Reputational risk

Risks of getting it wrong

17

What documents do I give prospective employees, and when?

>Documents to assist determinate if the candidate could undertake the role:> Position description

> Prior injury declaration form

> Consent to any particular requirements eg police checks

> Psychometric testing?

Determinate if suitable candidate

19

>Documents to comply with legal requirements and protect the business: > Contract of employment/letter of offer

> Fair Work Information Statement

> Applicable modern awards and enterprise bargaining agreements

> Tax file declaration

> Superannuation fund nomination

Offer of employment

20

>Documents about the workplace and how it works and expected behaviour, including:> Policies

> Procedures

> Code of Conduct

> Induction and training documents

Upon commencement

21

• Policies may be incorporated into the employment contract

• You find out the candidate is not suited to the role (medical grounds, police check) after accepting an offer

• The employee commences without signing a contract and/or without seeing a position description

Risks of getting it wrong

22

Can I rescind an employment offer that has already been accepted?

> Change of mind> Position no longer required

> Better candidate suddenly becomes available

> Candidate fails pre-employment check> e.g. police record or working with children check

> Something new about the candidate is discovered> Candidate might say or do something before

starting

> You might be contacted by old employer

Why withdraw an offer?

24

> No unfair dismissal

> Discrimination or general protections claim if denied employment

> Are protected attributes or workplace rights part of the reason for rescinding the offer?

> Misrepresentation claim if they acted on the offer

> Has the candidate already quit their job or moved because of the offer?

> Did you make any representations to the candidate about the security of the role?

What are the risks of rescinding an offer?

25

What are the risks of rescinding an offer?

26

> Do you have a contractual right to not proceed with the employment?> Are there any relevant pre-conditions to employment

you can rely upon?

> Can you terminate the offer before the employment actually starts?

> Be wary about terms implying a certain length of employment

> Walker was employed by ABN AMRO> Offered employment with NatWest

> Walker negotiated that he would be promoted after one year and receive a fixed bonus in the first year

> NatWest’s standard contract terms allowed termination on one month's notice

> Walker then left ABN AMRO> NatWest withdrew offer

Walker v CitiGroup[2006] FCAFC 101

27

Federal Court:> NatWest was not entitled to withdraw offer> Negotiated contract terms suggested Walker

would remain employed for at least 12 months> There was a 75% chance Walker would have

remained employed for four years> Walker awarded $2,346,553 for financial loss

and $100,000 for consequential damage

Walker v CitiGroup[2006] FCAFC 101

28

> Have a contractual right to terminate the contract before the employment starts

> Be careful about contractual terms which guarantee a fixed period of employment

> Be careful rescinding an offer: > for something you already knew (or should have

considered)

> if there are protected attributes or workplace rights at play

> if the candidate has already acted on the offer

Managing the risk

29

Do I need a reason to dismiss an employee during the probation period?

An individual cannot make an unfair dismissal claim if:> Employed less than 6 months

> 12 months for a small business

OR > Earning more than $138,900 per annum and

not covered by a modern award or enterprise agreement

Do unfair dismissal laws apply?

31

> An employer takes “adverse action” against an employee if employment is terminated because the employee: > had a protected attribute; or> exercised, or proposed to exercise, a

workplace right

> Reverse onus of proof applies, penalties and damages

General protections

32

> Annual leave

> Personal/carer’s leave

> Public holidays

> Industrial action

> Refusing to work unreasonable hours

> Refusing to perform unsafe work

> Exercising an Award/EA entitlement

> Right to make a bullying complaint

> Right to make WorkCover claim

> Right to make a complaint about employment

Workplace rights

33

> Typically found in letter of offer, contract, award or enterprise agreement> Must provide minimum notice under the NES

> If not, the employee may be entitled to "reasonable notice"

> Even express rights can be qualified:> Pay attention to all of the contract, not just the

termination clause

> Policies, awards and enterprise agreements may also matter

Do you have an express rightto dismiss the employee?

34

> David commences new job on 1 February

> Earns $100,000 per annum

> David works two weeks before putting in a WorkCover claim for a sore back

> Returns to work after two months

> Manager believes WorkCover claim is a sham

> Two weeks after David returns to work, manager wants to dismiss him

> Says David is not performing

The scenario

35

>Unfair dismissal laws do not yet apply

> Is there a contractual right to dismiss?

>What is the reason for dismissal?> Poor performance?

> Making a WorkCover claim?

> A temporary absence from work?

>David may make a general protections or discrimination claim

Can David be dismissed?

36

> Raise performance issues early (and often)

> Know why you are considering dismissal> Is there objective evidence to support that reason?

> Might there be another reason?

> Consider steps that can be taken to manage any risks

> Be careful about what reasons you give a dismissed employee

Managing the risk

37

Can I bring a contractor or labour-hire employeein-house?

A "transfer of business" can occur when:> Company A outsources work to Company B

> The outsourced work is performed by Company B's employee

> Company A decides to cease outsourcing

> Company A employs Company B's employee to perform the previously-outsourced work

Can in-sourcing give rise to a "transfer of business"?

39

> Company B's enterprise agreement will continue to apply to the transferring employee at Company A

> Company A must recognise any prior service with Company B unless:> Company A and Company B are not

associated entities; and

> Company A refuses in writing to recognise any prior service with Company B

What happens if there is a"transfer of business"?

40

> Ms B was employed by Hays to work at ERGT under a labour-hire arrangement

> After three months, Ms B was offered employment with ERGT directly

> ERGT dismissed Ms B three months later

> Ms B made an unfair dismissal claim

> ERGT denied Ms B was protected from unfair dismissal

Burdziejko v ERGT Australia [2015] FWC 2308

41

The Fair Work Commission: > Accepted ERGT and Hays had a genuine labour-

hire arrangement

> Ruled there was a "transfer of business"> ERGT initially outsourced work to Hays

> ERGT then employed Ms B instead of continuing to outsource work to Hays

> Counted Ms B's employment with Hays as employment with ERGT

Burdziejko v ERGT Australia [2015] FWC 2308

42

> An in-sourced employee may later claim: > the former contractor or labour-hire arrangement

was a "sham"

> This is particularly a risk if:> They effectively worked full-time for you before

> Your staff treated them like employees

> They do not have an employment contract with someone else

Other risks

43

> Have a good contract with a labour-hire company or contractor

> Ensure staff know the difference between employees and contractors

> Ensure that labour-hire companies have employment contracts with their personnel

> Confirm in writing whether prior service will be recognised when in-sourcing

Managing in-sourcing risks

44

Questions?

Contact details

For more information about the services offered by Russell Kennedy, please visit us at www.rk.com.au

Libby Pallot

Principal

Ph: (03) 9609 1668

E: lpallot@rk.com.au

Abbey Sutton

Associate

Ph: (03) 8640 2312

E: asutton@rk.com.au