Workplace Law & Strategy

Love me tender – how IR is a key point of difference

Posted in HR/IR Strategy

Are we in the beginnings of a cyclical upswing in industrial action in Love me tender - option 3Australia? And if so, what does it mean for those involved in competitive tender processes?

Data from the ABS indicates that the last spike in industrial disputes occurred in September 2012, with around 110,000 working days lost. The sense that there may be another spike coming correlates with the enterprise agreement life cycle, as enterprise agreements typically expire after 3 or 4 years. Many businesses are currently engaged in, or planning for, negotiations for the next round of agreements.

In this climate, the potential impact of industrial action is particularly troubling for those employers who engage in competitive tender processes in order to win work. Organisations who put work out to tender are increasingly adopting sophisticated assessment criteria, which include many aspects of the tenderer’s business strategy – rather than just looking at price. One of the criteria that often has a high priority is how industrial relations risk (especially the risk of industrial action) will be managed and reduced. There is an expectation, if not a requirement, that tenderers will have a comprehensive plan to minimise the impacts of industrial action, and that innovative solutions will be designed by tenderers for that purpose.

Principals often award tenders for many years which means that the management of industrial relations risk requires tenderers to ‘play the long game’ in managing and pre-empting industrial action risks that might arise during the course of the contract.

In this context, tenderers need to think deeply about how they best position themselves in a competitive tender process. This requires careful consideration of the options that are available to get the work done. Traditional models of engaging employees might no longer be enough to convince the principal that the tenderer is trying to minimise employment risk. Demonstrating capability and innovation in managing industrial relations risk means looking afresh at workforce models, including:

  • creating solutions to the problem of enterprise agreements expiring during the course of a project;
  • rethinking reliance on one ‘supplier’ of labour and considering how multiple sources of supply might be engaged – to help minimise disruption to, or delay in, labour supply that might arise from industrial action; and
  • outsourcing some of the IR risk to other entities or stepping outside the traditional workforce engagement models.

While you might wonder if the current industrial landscape is really that tumultuous, or you may feel a touch of schadenfreude at the industrial action going on elsewhere (confident that your ship is secure), now is the time to think proactively about your system for managing industrial relations risk to differentiate your offer from competitors.

Managing absenteeism: a collaborative approach

Posted in Employment & Holidays, HR/IR Strategy, Workplace policy and process

Doctor

Employers who proactively deal with employee absenteeism, and focus on assisting employees to return to work, can reduce the impact of employee downtime and disruption to working arrangements.

We’ve previously discussed some key tips about handling non-work-related illness and injury.  This post focuses on the importance of taking a collaborative approach when managing frequent or prolonged absences.

Frequent or prolonged absences due to stress, illness, injury or other personal reasons can be a major cause of frustration for employers. However, there are significant risks associated with taking punitive measures against employees who may be genuinely unwell, illustrated in several recent decisions.

In our experience, approaching the issue from the perspective of understanding the employee’s condition, and assisting them to return to normal duties, can help the employer drive a long-term resolution of the issue, rather than approaching absenteeism as a disciplinary matter. This applies even when the employer suspects that an employee is “gaming the system”, and their stated reasons for absence are not genuine.

Employees are far more likely to co-operate and share information about their condition if they feel they are being supported. This information can be vital to help managers make decisions about workforce planning, and for discussions with the employee about any reasonable adjustments that could be made to their role. The primary driver when seeking to address absenteeism issues should be finding out the reason for the absence, and finding a way to get the employee back to work if at all possible.

This collaborative approach could alleviate some of the difficulties seen in a recent case in the Federal Circuit Court of Australia where a manager directed an absent employee to allow him to speak with her treating doctor. The manager sent an email to the employee, implying that a failure to agree could result in termination of employment. The Court was critical of the manager’s approach, found the direction unreasonable in the circumstances and found that the employer’s reason for asking to speak with the doctor was for the purposes of disciplinary action, rather than assisting the employee to return to work.

But this doesn’t mean that talking to an employee’s treating doctor is completely off limits. It can still be a helpful measure in understanding the reasons for absenteeism and the employee’s condition, and managing a return to work – the key is having a discussion with the employee first, and getting their permission. If the employee understands why the employer wants to speak with their doctor, and the types of questions the employer wants to ask the treating doctor, they may be more likely to agree.

Of course, not every case of absenteeism will be for genuine reasons and, if this can be established, then a disciplinary approach may be appropriate. The approach outlined above should help to establish whether or not the employee is absent for genuine reasons and, if the absenteeism is not genuine, support the taking of disciplinary action if it becomes necessary.

For HR practitioners and managers, this may involve a change of mindset in approaching issues of absenteeism but one that we think has the potential to produce positive benefits.

Mum’s the word on safety during takeovers

Posted in Health & Safety, Workplace policy and process

LuggageA takeover of one business by another can be a lot like a visit from your mother-in-law.

On Mother’s Day, we enjoy a cup of tea or a glass of bubbles with our mums in recognition of all their hard work and sacrifice. We give thanks for the tips, advice, guidance and life-long lessons only they can proffer. I recall with great fondness my Mum’s unwavering enthusiasm during the tears, tantrums and pre-stage jitters of my jazz-ballet/hip/funk/tap performances. For Mum, an exhaustive commitment of pick-ups and drop-offs, elaborate hair do’s, dress rehearsals and toe-tapping her way through yet another Robert Palmer tribute. Every time, through the haze of Cedel Hairspray Extra Firm, there was my Mum.

But what about when your mother-in-law comes to stay? When all your hard work is questioned. When your housekeeping standards are judged by her white-gloved finger across furniture and subsequent pursed lips. When those menial tasks you have performed over and over, and without incident, are scrutinized. When you (and the state of your linen cupboard) are the unwilling recipient of unrequired and unhelpful advice.

Or perhaps it’s the other way, and you find yourself having to articulate the importance of housekeeping, of putting things away, washing the dishes and keeping your new duck-egg-blue Mud platter out of the dishwasher. In either case we are all familiar with that feeling of tension and unease that visits of this kind bring with them.

You can find yourself defending your safety management system and/or trying to explain the importance of it. Playing nice and toeing the line can be stressful and challenging. Not unlike being visited by your mother-in-law, being prepared and planning ahead is critical.

Here’s our ‘to-do list’ for such visits:

  • Get your house in order; prepare for the meeting or the site visit by making sure that your housekeeping is up to date and personal protective equipment is being used;
  • Be proud of what you have, be ready to talk about the positives and to share your knowledge of the role of safety in the business and how your safety framework hangs together;
  • Be prepared to respond to any knowledge shortfalls about the business, the risks in the business, your safety record, areas of improvement and challenges;
  • Prepare your workforce and keep them informed – the more they are the more likely they will be to keep their mind on their job and not of their job security;

Be sure you stay open to new ideas and differing perspectives, After all, sometimes mother does know best. Recognise that the change brings an opportunity to learn something new that improves the way you are managing your health and safety practices.

Are you on the right path with interns?

Posted in Diversity & equal rights, Workplace policy and process

FinanceScott Morrison’s first Federal Budget announced the creation of the ‘Youth Jobs PaTH’ (Prepare-Trial-Hire) program – a program designed to encourage up to 120,000 unemployed youth into the workforce through skills training programs, paid internships and incentive payments for prospective employers. While further details will come to light over the course of the Federal Election campaign, employers who want to participate will need to look before they leap, to make sure their participation in the program doesn’t lead them, later on, to fall foul of the minimum wage provisions in awards and legislation.

The Budget papers suggest that the Youth Jobs PaTH will involve three-stages:

  1. six weeks of skills and job hunting training;
  2. internship placements of between 4 to 12 weeks duration, in which interns will work between 15 to 25 hours per week. During these placements, jobseekers will receive $200 per fortnight (on top of their income support) from the Federal Government, while businesses who take on interns will receive an upfront payment of $1,000; and
  3. larger subsidies paid to businesses who take on Youth Job PaTH jobseekers on an ongoing basis, with accelerated wage payments to prospective employers forecasted to be between $6,500 and $10,000.

We’re yet to see how the program will interact with the minimum wage provisions in awards, but social media has lit up at the suggestion that jobseekers under this scheme will be paid as little as $4 per hour (excluding the unemployment benefits these jobseekers will retain during this time) during stage 2. The ACTU has even described the scheme as ‘ripe for abuse’.

It seems unlikely to us that the Youth Jobs PaTH will give employers carte blanche to escape from all obligations relating to interns.

However, what will be important for businesses wanting to minimise the risk of claims is how they engage with jobseekers both during the internship program and (more importantly) after it is completed – and that there is a clear line between those involved in the internship program and those who have moved into an employment relationship.

This is particularly so where the vulnerability of young workers to ‘intern’ arrangements has been a key concern for the Fair Work Ombudsman (FWO). This was highlighted in the recent decision in CrocMedia, where the Court looked at minimum wage obligations for relationships that were described as ‘internships’ or ‘vocational placements’. The Court decided that two radio producer ‘interns’ had actually been engaged as employees, rather than unpaid volunteers. The Court placed emphasis on the fact that the company had derived a profit or productive work from the contribution of the interns and the length of their engagement.

What does this mean for businesses participating in the Youth Jobs PaTH program and for using internship arrangements more generally?

A few things:

  • comply with the program requirements while the internship placements are under way, and ensure the jobseekers understand that they are being engaged as part of the internship program;
  • make sure it is clear when the internship placement ends;
  • make sure that, if a jobseeker transitions to an ongoing basis or out of an internship arrangement, their terms and conditions of employment meet the minimum employment standards under any applicable awards or legislation; and
  • make sure that, at all times, you comply with workplace health and safety obligations regarding all workers in your business (including interns and unpaid volunteers).

The Youth Jobs PaTH programme raises some interesting questions about the dynamic between employers, employees and interns. These are arrangements that need to be tightly managed to minimise exposure to underpayment claims and FWO prosecution.

What lies beyond enterprise bargaining?

Posted in HR/IR Strategy, Workplace policy and process, Workplace reform

ColourIn 1993, the Keating government passed laws to move Australia towards a “system based primarily on bargaining at the workplace, with much less reliance on arbitration at the apex” (Laurie Brereton MP, Minister for Industrial Relations, 28 October 1993).  The embrace of enterprise bargaining instead of industry-wide, centralised wage fixation was to be the end of a creaking “Australian settlement” that had been overtaken by modern values and economic reality.

Enterprise level bargaining has undoubtedly been a positive move away from the system that preceded it.  Nevertheless, over 20 years since its introduction, an observer might feel skeptical about the promise of agreements that would be tailored to the needs of individual workplaces and their employees, under which “employees and employers alike can and will benefit”.  It is not hard to find examples where enterprise bargaining’s ideals are being undermined by:

  • Sectoral bargaining. Many employers who have tried to strike genuinely enterprise-specific bargains will be familiar with variations of the phrase “this is the industry standard…”. The reality is that many terms and conditions of employment are set at an industry or sectoral level, sometimes with the cooperation of industry bodies, even if they are formalised in enterprise-level agreements.
  • The proliferation of “pattern” agreements. Unions can and do force businesses to sign up to slight variations of the same template enterprise agreement, a process repugnant to the idea that agreements are tailored to each enterprise. While unions cannot take industrial action to support “pattern bargaining”, the legislation is cast so narrowly as to offer little real protection against this practice.
  • Power based rather than interest based bargaining. The enterprise bargaining process often involves a “push/pull” exercise of debating claims in an oppositional way, rather than bargaining representatives workshopping creative ways of meeting their needs and desires in a way that is good for staff and the business. Indeed, once the nominal expiry date of an agreement has raised, employees and employers can inflict all sorts of legal damage on each other with strong legal immunities applying to the consequences of that behaviour. The levers within the system encourage rather than discourage oppositional based bargaining. The weak threshold requirements for the taking of protected industrial action do nothing to help the situation.
  • Highly technical rules for making agreements. Employers of all sizes have trouble complying with the scheme for bargaining in the Fair Work Act. These well-intentioned provisions have the effect that, for example, changing the mandatory notice issued to employees at the start of bargaining – even to fix the typos in the template! – can invalidate an agreement, regardless of whether any employee was actually disadvantaged. For many smaller businesses, this and many other potential pitfalls mean that bargaining isn’t worth the hassle. This leaves employers and employees with the default safety net: an industry-level modern award, with standard terms determined by a centralised authority.

So what can be done to put the theory of enterprise bargaining into practice? Taken in isolation, the problems above might be patched up through tweaks to the legislation: put in place stronger protections against sectoral or pattern bargaining; clean up problem industries such as building and construction; relax procedural rules and allow the Fair Work Commission to waive compliance where no harm has been done; or overlay a system of individual statutory agreement making, etc.

On the other hand, perhaps it is time for Australia to look at its policy settings more broadly and decide whether enterprise bargaining as we know it has had its time in the same way as centralised wage fixation ran its race over 20 years ago. This would require the same kind of vision and boldness that was shown decades ago when the system was changed for the better. It would involve looking holistically at the industrial relations system and alternative ways to meet the policy objectives which underpin the legislation. We should not rule out the idea that the system can evolve or be fundamentally altered for the better. History shows that it can be done when the right mix of ingredients are present.

Screening for psychopaths – managing the front end of workplace bullying

Posted in Diversity & equal rights, HR/IR Strategy, Workplace policy and process

EyeWhen it comes to managing bullying in the workplace, the focus tends to be on dealing with the bullying behaviour after it has occurred or at least after the bully has started work. But are there ways to stop bullies from being recruited in the first place?

One place to start is screening during recruitment. There are certain personalities who deliberately inflict harm or lack the ability to understand the harm they are doing to others. These personalities fall within a category that psychologists call the ‘Dark Triad’ which comprises three sub-personalities: Machiavellianism, sub-clinical narcissism and sub-clinical psychopathy.

The Dark Triad share a number of overlapping features including social malevolence, callousness, aggression, manipulative behaviour, duplicity, a lack of empathy and a tendency towards self-promotion. Studies have shown a strong correlation between psychopathy and bullying behavior and these studies have indicated that psychopaths are fairly well-represented in leadership positions.

Psychometric testing is commonly used by companies at the recruitment stage to ensure a certain level of cognitive function and aptitude amongst potential employees. Some companies use behavioural interview questions too. But do they use psychological assessment tools in order to weed out the Dark Triad traits that lead to bullying?

There are various assessment tools that have been developed in studies aimed at identifying both bullies and Dark Triad traits. They range from basic questionnaires to more sophisticated tools that require administration by a qualified clinician under scientifically controlled conditions. Access to these can be costly, but when you consider the collateral damage that can occur from a psychopath in the workplace, who then ascends to management, and causes harm to other employees and the business, it might be worth the investment.

The corollary to this is, if these personality traits are viewed as a disorder or mental illness, rather than a defect of character, would it be discrimination under the Disability Discrimination Act 1992 (Cth) (Act) to actively try to eliminate this group from the workplace?

The definition of ‘disability’ in the Act includes “a disorder, illness or disease that affects a person’s thought processes, perception of reality, emotions or judgement or that results in disturbed behavior”.

But even if psychopathy is a disability, all employees must be able to perform the inherent requirements of the job. To the extent that a psychopath is unable to do so they will fall within the section 21A exception of the Act and it would not be discrimination to refuse to hire them on that basis.

Isn’t it an inherent requirement of all jobs to be able to work without bullying and harassing your colleagues? An untreated psychopath by their very nature cannot work in a team effectively without harming others and ultimately causing reputational damage to a business. Should companies be investing in more sophisticated psychological assessment tools to screen Dark Triad traits and bullies form the workplace?

We would be interested to hear your thoughts.

Are your HSE reporting processes a game of snakes and ladders?

Posted in Health & Safety

Getting access to a service provider can be like a game of snakes and laddersPhone.

A colleague in our office has been trying to update her new bank details with a service provider. Her attempts to provide that information and resolve the issue have been challenging to say the least.

Interactions included numerous unsuccessful calls to their customer service line, navigating through complex main menu options, voice recognition failings, and the final assault, enduring the repetitive melody of some 16th century/German-born composer during lengthy wait times.

We’ve all been there.

Helpfully (or so she thought), there was an option for her to leave her phone number and have a customer representative call her back. When they finally returned her call it was 11.45pm. She missed the call and the message that was left for her was to contact the customer service line. Defeated, our colleague skidded down the snake’s back once again. She has been part way up the ladder and back down the snake five times in the last fortnight. Sigh.

Many of us have experienced similar challenges.

What if this customer service experience was experienced by an employee, contractor or a member of the public trying to report a significant risk to health and safety or the environment?

Are you confident that your HSE reporting processes for considering information regarding incidents, hazards and risks enable you to respond in a timely way to that information?

Some key considerations are:

  1. Systematically test your processes for reporting incidents – are there road blocks or red flags in your current reporting systems that may prevent an incident being effectively reported?
  2. Have you got a process for verifying that your system works? Are you confident things aren’t falling through the cracks?
  3. Make improvements. Stay ahead of the game by seeking new ways of reporting incidents as technologies evolve.

Breaking up is hard to do

Posted in HR/IR Strategy, Workplace policy and process

So, your star employee has resigned. What happens next can be crucial for your brand.

The way a business responds to the resignation of a star employee is a touchstone of successful HR leadership. Employees, competitors, customers, and other key stakeholders (as well as your falling star) will be all eyes and ears about how you (HR) and senior management react to the news. HR 101 teaches us that recognising an employee’s decision to move on is part and parcel of business reality – but is there merit in leveraging the process further?

Leading organisations increasingly see value in accommodating and even advancing the choice of their employees to seek new ventures, particularly where there is no obvious path for career progression internally.

There is an element of long-term thinking here: the business community is a small world and today’s departing talent could well be next year’s customer. Being seen as an organisation that supports an employee’s decision to pursue outside opportunities, and values its alumni, may offer a better path in building employee engagement and your brand.

By contrast, taking a short-term view of the situation (and reacting badly) is not only negative for the relationship with the departing employee, but also risks knock-on effects for clients and key stakeholders more broadly. It can also have a detrimental effect on remaining employees’ health and wellbeing.

Obviously, any business must protect its immediate interests and commercial advantage. However, sometimes, managers dealing with these situations adopt just because you can-style retribution.

Examples of ‘just because you can’ include:

  • withholding discretionary benefits/payouts;
  • creating difficult arrangements for the transition period e.g. wiping company data from mobile phones;
  • distorting workflow (e.g. not giving the resigning employee any more or interesting work);
  • freezing out (e.g. directing others not to speak to their colleague, retracting invites to client and company events);
  • onerous handover requirements;
  • vigorous exit interviews and check-lists;
  • making adverse comments; and
  • interfering with external client relationships.

Stakeholders and the market quickly form a view about the career change and how it was dealt with. Engaging in “just because you can” will be seen for what it is – which is probably not how your organisation aspires to be perceived internally or externally.

Consider your process against our key takeaways for handling resignations:

  1. It’s not personal – take a long-term view of the situation. Respect the employee’s decision to seek new ventures and help them in advancing their next move.
  2. Show support – be the facilitator, not the inhibitor.
  3. Communicate carefully – how you communicate the news both internally and externally is a direct reflection of your organisation’s management style and brand.
  4. Industries talk – that old saying ‘(insert city) is a small place’ couldn’t ring truer. Think about how negative comments and rumours can reflect your businesses image.
  5. Consider the health and wellbeing of your remaining employees by communicating with clarity. Set a positive tone for how you want the ‘news’ to filter down internally.
  6. Protect legitimate interests – but do it respectfully and with a commercial eye, unless there is wrongdoing.

In the wise words of pop princess Taylor Swift, the haters will hate and the players will play. It’s how you respond and facilitate this often sensitive process that sets great HR leaders apart.

So go on, shake-it-off and lead the change.

Confronting the confronting questions

Posted in Health & Safety, Workplace policy and process

15 Australian workers have been killed so far in 2016, and based on statistics below, an additional 175 people may die in work related incidents this year.

Workplace fatality stats

Whilst many organisations properly devote vast resources and time to managing health and safety, and have processes in place to respond in a time of crisis, many don’t have a plan for managing the people issues during a crisis.

Some confronting questions that can arise are:

  • when is the right time to pack up a colleague’s desk or empty out their locker?
  • will the family want to see former colleagues and senior managers at their home and at the funeral service?
  • will a family want to see the scene of the incident?
  • what additional assistance might friends and families need and who should convey offers of assistance to them?
  • how should a memorial be managed?

We have numerous other examples of people issues that will arise and our experience over the last 20 years has shown us that clients who have successful responses have a clear framework and accountability for consulting with family members and co-workers about key people issues.

The most comprehensive crisis management plans will not be able to predict and plan for all of the reactions of co-workers, friends and the family of the deceased. However, careful planning can alleviate some of the risks associated with this aspect of your company’s crisis response.

Key success factors in enterprise bargaining

Posted in HR/IR Strategy, Workplace policy and process

We’ve been doing work in a range of sectors facing challenging enterprise bargaining negotiations. Legacy arrangements made in the past are no longer fit for the future.

What are the some of the key success factors for employers who achieve gain from a difficult enterprise bargaining negotiation?

Infographic

As with any significant project, leadership is critical.

A ‘burning platform’ galvanises clarity of need. What is the gain needed and what ‘pain’ is tolerable in its pursuit?

A well run campaign demands solid resourcing and alignment across the business in what invariably becomes a multi-dimensional project. Often, it gets tough and resolve is critical but this is where planning is invaluable.

In our unique enterprise bargaining workshops we take clients through a process which addresses each of these issues to form a bedrock for success.