HR is an integral part of any business, managing hiring, firing, training, and motivating employees. As such, it is also responsible for adhering to specific laws and regulations. Below we have outlined a few areas to be aware of to avoid landing in hot water.
The Fair Work Commission has recently indicated that a casual employee has the right to be converted to permanent employment if they so request, following 12 months of regular casual employment.
Minimum requirements can vary and usually come from a registered agreement or an award. Each award or agreement will have clauses to govern the transfer from casual to a permanent employee either full-time or part-time reflective of the casual work performed in the minimum period. Checking the award or agreement is a great place for your human resources team to start.
Contractor or Employee
It is essential to ensure your employees are categorised correctly. Many factors go into determining whether someone is an employee or a contractor. Fairwork has handy information on their website on how to navigate this issue.
Having an ABN and an invoice does not automatically make a person a contractor. Courts and tribunals make it clear that the test for contractor status is high, so it is essential that your HR department is across all of the considerations.
Some of the considerations include:
Control over how their work is completed
Employee - Performs work, under the direction and supervision on an ongoing basis
Contractor - Has a higher level of control of how the work is completed
Tools and equipment
Employee - Tools and equipment or an allowance for tools in most cases are provided by the employer.
Contractor - Primarily uses their tools and equipment.
Employee - Paid on a regular weekly/fortnightly/monthly basis
Contractor - Has an ABN and submits an invoice for completed work or is paid at the end of the contract or project.
See Fairwork's factsheet, for a comprehensive list of the considerations
A lot of employers offer work experience or internship programs. This is fine provided the person is receiving training or work experience for their benefit, training or acquisition of skills. If however, the person is undertaking productive activities that benefit the employer, they are then considered an 'employee' and entitled to:
- a minimum wage
- the National Employment Standards
- the terms of any applicable award or registered agreement.
There are different types of unpaid work arrangements such as work experience, unpaid trials such as skills demonstrations, internships and volunteering. Deciding if the agreement is lawful is the first step, Fairwork has an excellent factsheet found here
Asking personal questions
When conducting an interview, only matters relevant to the skills, experience and knowledge required for the position can be asked. Human resources or the employer must avoid asking discriminatory questions, for example; you cannot ask marriage status, children status, age, or if there are any medical conditions, as this is discrimination.
Make it a Policy to Document Everything
Best practice is to document everything, log date, time and a summary of those involved and the discussion. This protects all parties in the event of a query or issue arising. Unfortunately, about 90% of the time, when an HR flag is raised, there is little to no documentation to support resolving the issue.
Document, even if you don't think there will be an issue in the future, it will provide important information if there is.
Written by Elizabeth Chryssidis - Director of Business House Australia