New legislation allowing employees access to 10 days of Paid Family and Domestic Violence Leave (FSVL) applies for large business from today, 1 February 2023. What does this mean for employers?

Firstly, what’s changed?

What is FDV?

Violent, threatening or other abusive behaviour by an employee’s close relative, a current or former intimate partner, or a member of their household, that:

Who is included?

When can it be accessed?

Full-time, part-time and casual employees may apply for FDVL if:

What evidence is required?

An employer can ask their employee for evidence that shows the employee took the leave to deal with family and domestic violence
If the employee doesn’t provide the requested evidence, they may not get FDVL
The evidence has to convince a reasonable person that the employee took the leave to deal with the impact of family and domestic violence

Types of evidence

What about Confidentiality?

New regulations prohibit employees from including information concerning FDVL on employees’ pay slips (Regulations)
This includes information about the employee taking FDVL, including leave records as well as any evidence provided by the employee
Payroll systems must be set up to ensure non-disclosure in leave records and on payslips
Pay slips must not mention FDVL, including any leave taken and leave balances

What are the obligations of an employer?

What should employers do now?

We recommend that all businesses take the following actions immediately:

We are here to help you with any of these changes. Reach out if we can offer you support.

The year’s end is fast approaching, but there are still several HR-related things you need to do before everyone clocks off for the summer break. To help, we’ve created this checklist of the six things you should do to get your HR function right before 2023 arrives.

1. Take stock

With limited time left between now and the end of the year, you should map out exactly what needs to be done. That means, of course, factoring in routine HR tasks such as payroll. But it shouldn’t just be about doing the bare minimum. There’s still probably enough time to get other, more strategic things done too. That could include things like developing recruitment and training plans, working on employee engagement strategies (it’s going to continue to be one of the biggest issues next year) and other important HR tasks.  

2. Prioritise

That said, you’re unlikely to get absolutely everything you want to complete before the break, so work out what your main priorities are and what you need to do to make them happen. Use the tried and trusted technique of ranking each task as ‘Urgent/Non-urgent’, ‘Important/Not important’, and focus on those that are urgent or important. 

If some of your big picture stuff is important but can wait until the New Year, work out what you can realistically do this year to progress it, so that you don’t have a mountain of work to come back to once the holidays end.

3. Communicate

This can be an unproductive time in some workplaces as people get that ‘end of term’ feeling. But, as a business owner or manager, you can’t afford to let things slide. So let people know your expectations between now and the end of the year. Don’t be oppressive about it – you want people to be happy AND productive But you need to make sure they also get through the work that has to be done. You should also let people know your expectations around the holiday period. Are you closing down for a while? Do you expect people to take leave? If so, let them know. 

Over-communicating is always better than under-communicating. 

4. Throw a party

You’ve probably organised your workplace party by now. But if you haven’t, there’s still time to do something. No matter how small your workplace, or busy you are, celebrating the end of year is an important point in the calendar and something your people deserve. 

Even if it’s just a lunch or some informal drinks, make sure you get people together before the holidays start to reflect on, and celebrate, the year that was.

5. Say thank you

Speaking of which, this is the time of year you need to say thanks (and your office party/lunch is an important part of that). For many of us, 2022 has been another trying year, and it’s important you let people know they’re appreciated. 

Saying thank you is important for your workplace culture, as well as for employee productivity and wellbeing. 

It’s also important for you as a manager or owner, because it boosts your productivity and wellbeing too. As the Harvard Business Review notes, “Gratitude is good for you.” 

So compile a list of the highlights of the past year, who’s been involved in them. And celebrate them either at the end-of-year function or in a company-wide communication. (Or both.) Just be sure to thank everyone for their efforts this year.

6. Get your HR ready for 2023

Finally, it’s worth remembering that while the year may change, the work goes on. There’s nothing worse than arriving back from holidays with a pile of work on the proverbial desk. So, going back to step one above, gear up for what lies ahead by drawing up a list of what needs to be done in 2023. 

Make headway into it now if you can, before you go on leave. And plan out what you can’t get through so that you don’t place yourself under unnecessary stress when you arrive back in the new year.

Want more?

Have a great holidays. If you’d like to know more about HR strategies for the rundown to the end of 2022, get in touch. 

Employers often use restraints of trade to try to stop employees from taking their confidential information to a competitor and gaining an unfair advantage over them. But just how enforceable are they? 

A recent New South Wales Court of Appeal (NSWCA) found that whether a restraint of trade is enforceable depends on whether you’re trying to protect a legitimate interest, as well as factors such as their duration and an employee’s seniority.

The background to the case

The case started with a familiar scenario – a senior sales manager left his employer to work for a competitor. However, his employment contract contained three clauses: a confidentiality clause, an ‘exclusive employment clause’ (this said he must devote his time and attention to the employer during business hours and promote its best interests), and a restraint of trade.

The restraint of trade clause was one of the typical ‘cascading’ ones that employers sometimes use that allow for ‘12 months’, ‘9 months’, ‘6 months’, etc, in the hope that a court will enforce the most reasonable duration.

When the employee left and worked for a competitor, the employer alleged he broke all three of these clauses in his contract. 

He then failed to comply with the notice of termination clause of the contract, which provided for three months that he would not work in direct competition. Instead, he started working for the competitor within four weeks of leaving. He also helped the competitor poach a more junior employee who was subject to a similar restraint of trade clause. 

The proceedings

The former employer brought proceedings in the Supreme Court of NSW (the NSWSC)  alleging the employee – and the employee he poached – had breached their employment contracts. It received interlocutory orders (that is, temporary orders), which prevented the employees from working for the competitor until the court decided the case.

The court eventually handed down a decision in the employer’s favour. It found:

The employee appealed the NSWSC’s decision in the NSW Court of Appeal. 

The appeal: Are restraints of trade enforceable? 

The Court of Appeal noted that restraints were only enforceable insofar as they protected an employer’s reasonable interests for a reasonable amount of time.

In this case, the employer had a legitimate interest in protecting its confidential information from a competitor, including its marketing plans and potential weaknesses in its product. As the employee was senior and privy to this information, it was, therefore, reasonable to restrain him from a competitor for nine months.

However, it also noted that the employee he helped poach was more junior and did not have any awareness of the company’s confidential information. It wasn’t reasonable to restrain him from working for a competitor because he could not damage its legitimate interest. 

The Court of Appeal also found that the employee breached his notice of termination provision. He had also breached his contractual and fiduciary duties to his former employer when he helped poach the employee.

The Court of Appeal also found that because the competitor had encouraged the employee to breach his fiduciary duty, it, too, was liable.

What the case means for you as an employer

There are times you can rely on restraints of trade to protect your confidential information, but they need to be proportionate, and they can’t be used as a ‘catch all’ to try to limit who employees can work for. You’re also far more likely to find they’re enforceable against senior employees.  

It’s always a good idea to have restraints drafted properly by your legal adviser. It’s also often a good idea to use ‘cascading’ clauses – based both on duration and geography – so that a court will enforce appropriate terms rather than ‘striking out’ an unreasonable restraint. 

Also. if you’re hiring an employee from a competitor and they have a restraint, proceed with caution. If possible, have your legal adviser check their restraint over before you sign them up.

Want more?

If you’d like to know more about restraints of trade, get in touch.

Alternatively, you can read the full decision here. 

 

Working from home has become commonplace. But is it really an encouraging workplace solution? How does it impact your overall human resources? We explore when it works, when it doesn’t and how to ensure it delivers positive benefits to your organisation. Should you really let that employee work from home? Is this key to performance management? More and more employers seem to be answering this question in the affirmative. After all, it is the age of flexible working, so allowing them to stay away from the office when they’re not needed is just what you have to do, right?

Besides, doesn’t letting your employees work from home produce a focused, happy and productive work culture? A HR win right?

The real benefits of working from home

The truth is, there can be real advantages in allowing employees to work from home – both for employers, employees and your human resources department. When Microsoft organised its own study into the topic and surveyed 4,000 IT workers in the manufacturing, financial services, professional services and retail/hospitality industries, it was found that there were immediate benefits. The Microsoft study also revealed that 45% of workers overall and 71% of information workers in retail/hospitality thought their productivity was higher when working remotely. Due to fewer distractions and a generally quieter atmosphere, this in part allowed them to get their daily tasks done.

Microsoft’s findings have been supported by other studies undertaken around the world. For instance in 2014, a Chinese-based NASDAQ listed company, randomly choose half of its 16,000 call centres workers to work from home while the other half stayed in the office. A nine month academic study into the impact of this experiment found that those who worked from home were 13% more productive – largely because they took more calls per minute and fewer breaks and sick days. How about that for HR strategies?

HR strategy or mistake? Common hesitations about allowing employees to work from home

That said, many employers are understandably still concerned about letting employees work from home – much of this concern centres on the loss of control. Potentially rising HR issues and lack of employee engagement. Who knows how hard your employees will work when there’s no one watching over them? What’s to stop them from going off-task or just completing the bare minimum? Isn’t it better to have them in the workplace and under a watchful eye?

Another common hesitation employers have is around whether workers can actually perform their role according to HR policies and procedures, especially when they’re not in the workplace. And there are obvious times this is true – a customer-facing hospitality employee can’t always meet and greet people from their living room; nor can a courier deliver parcels from a home office. 

But there are also many situations that are a little more complex – such as the creative team who must accumulate ideas together, the consultants who need to collaborate to solve a clients’ problem, or the manager who really needs to be accessible to team members, consulting them on their roles and overseeing their work. 

Finally, some employers are concerned about potential security breaches – especially in industries that rely on a high degree of confidential information and data such as professional and financial services. What happens if the employee compromises our systems or introduces a virus to our network from their own device? This could put your human resources department into meltdown. 

Getting around these hesitations: is it worth it?

My industry work with clients has shown that sometimes employers’ fears are well-founded. Some employees won’t do the right thing and shouldn’t be granted such deep trust; sometimes work is best completed in the office where employees can consult face-to-face and bounce ideas off each other, as a supportive team.

However, placing a blanket ban on working remotely can have a negative impact on morale and ultimately affect your business. Instead, for employee management and development I prefer to look at each scenario on a case-by-case basis. Starting with a written policy that states exactly what the rules are around working from home – who’s allowed to do it, when and for what reason.

Beyond that, I also think there are a few key initiatives every employer should do to ensure working from home works for everyone – not just the employee.

How to get working from home right in your workplace

If you’re struggling coming to terms with challenges of working from home, here are key measures every business should consider.

1. Analyse what can be done from home.

In conjunction with your employees, decide which tasks can be performed at home and which are best for the office. Restrict remote time to the days when only those non-office tasks need to be done.

2. Set measurable goals.

HR management is all about setting goals. If someone is working from home, make a list of achievable expectations. Write down what you expect them to achieve while they’re away from the office. If incomplete, their remotely working status should be reviewed.

3. Communicate.

Successful managers constantly let people know where they stand – what they’re doing well and where they need to improve. Unfortunately, when someone works from home it can be “out of sight, out of mind” on this front.

4. Bring people back into the office.

There are benefits of working face-to-face too – both from a social and productive standpoint. By making sure your team come into the office from time-to-time, a noticeable beneficial outcome will show for the business. For instance, set a compulsory weekly or fortnightly team meeting that can’t be missed without a valid excuse.

5. Keep connected.

These days apps such as Slack and Google Hangouts let you stay in constant communication with your team members. Take advantage of these (resist temptation of checking on employees) it may just help with employee engagement.

6. Put the right tech in place.

If you’re worried about your systems being compromised, speak to your IT members. Discuss ways to avoid this and have a written protocol on what’s allowed and what’s not.

And finally…

Real benefits can come from working at home. However, the reality is leadership and management needs to be planted and in some cases, the answer will have to be no. Be prepared for these instances and have a solid, logical reason for why you would deny some employees access to it – and communicate this clearly. By being consistent and transparent, you’ll get the respect from your employees, while helping create a happier, healthier and more productive workplace. If you have any questions regarding flexible working conditions and working from home, speak with the Catalina Consultants team today.