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?
- Full-time, part-time and casual employees will be able to access 10 days of paid family and domestic violence leave in a 12-month period (FDVL)
- Previously, only full-time and part-time employees could access FDVL and only up to 5 days of unpaid leave in a 12-month period
- The full 10-day leave entitlement will be available upfront and can be taken in a single block or in any other manner
- There is no length of service requirement or qualifying period
- The leave does not accumulate year-to-year
- There are now tighter rules about information that must not be included on an employee’s pay slip relating to paid FDVL in order to preserve confidentiality
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:
- seeks to coerce or control the employee;
- or causes them harm or fear
Who is included?
- Spouse or former spouse, de facto partner or former de facto partner
- Child, Parent, Grandparent, Grandchild or Sibling
- A child, parent, grandparent, grandchild or sibling of an employee’s current or former spouse or de facto partner,
- A person related to the employee according to Aboriginal or Torres Strait Islander kinship rules
- Intimate partners (even if not living together), or
When can it be accessed?
Full-time, part-time and casual employees may apply for FDVL if:
- they experience family and domestic violence
- they need to do something to deal with the impact of the family and domestic violence
- it is impractical to deal with the family and domestic violence outside their ordinary hours of work
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
- documents issued by the police service
- documents issued by a court (AVO/ADVO CAN’s)
- family violence support service documents, or
- a statutory declaration
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?
- FDVL is now an NES entitlement
- FDVL has strict record-keeping requirements
- A contravention of these requirements by an employer can lead to civil penalties
- $16,500 for individual; $82,500 for corporation
- FDVL poses general protections risks in that someone may not be treated adversely due to accessing FDVL.
What should employers do now?
We recommend that all businesses take the following actions immediately:
- Update your employment contracts
- Update your Family and Domestic Violence Leave Policy
- Communicate the changes to all employees
- Update your induction processes to ensure all new employees understand the policy and how to seek support
- Ensure your payroll and finance systems are compliant with confidentiality requirements
We are here to help you with any of these changes. Reach out if we can offer you support.
As we head towards the holiday season, it’s fair to say that 2022 was yet another big year for Australia’s workplaces. We look back at seven HR issues that have helped shape the previous 12 months.
1. Labour shortages
Perhaps the most important factor that shaped Australia’s workforce over the past year has been our labour market. With the unemployment rate sitting below 3.5% and with immigration slowing thanks to COVID-19 restrictions of the past two years, many industries and employers have faced a full-blown labour crisis. In fact, a lot of employers have struggled to get new workers while others have failed to keep their existing ones without offering significant pay increases.
It’s at times like these that both recruitment and retention strategies take on a whole new importance. So, if you’re not doing what you can to optimise your workplace culture and keep employees happy and productive, now is the time to start.
2. A new government
In May, the Albanese-led Labor government took office, bringing with them a different approach to industrial relations This included a renewed emphasis on job security and gender equality.
In early September, the government also hosted a Jobs Summit in which it committed to multi-employer bargaining, as well as changes to the ‘better off overall’ test the Fair Work Commission uses when creating Awards.
To help alleviate labour shortages (see 1 above), the government also announced it planned to lift the number of skilled workers it would accept from overseas.
3. Elevation of psychological risks
Mental health has been a major issue in Australia’s workplaces for some time. However, this year, the NSW government made it mandatory for employers to assess the workplace for psychological risks (and protect their employees from them). This elevates psychological harm to the same level as physical harm under NSW law, and means employers have new obligations in the field.
So if you haven’t already assessed the psychological risks in your workplace and taken steps to rectify them, do so as soon as possible.
4. Clarity on contractors
Towards the end of last year, the High Court handed down its Workpac decision, which means that this year – finally – employees have had a higher degree of certainty over their employee obligations.
The distinction between casual and permanent employees is now more obvious, especially when combined with the former government’s legislation around transitioning from casual to permanent. That meant employers could act with a bit more confidence when it came to staffing issues this year.
5. Diversity comes of age
Diversity has been a major issue in our workplaces for some time. However, 2022 was the year that it finally became a workplace priority for many of Australia’s employers. And why wouldn’t it have? Diverse companies are shown to “lure better talent and improve their decision making, customer orientation and employee satisfaction” – all major considerations in a job market like the current one.
6. The workplace changes
While COVID-19 is still with us, 2022 was a year of less disruption than 2020 or 2021. We didn’t have the lockdowns or border closures or anything else that impacted our businesses in quite the same way as we became used to in the two preceding years.
And yet, this didn’t mean we went back to how things were pre-pandemic. Instead, we still kept many of the workplace practices that had been developed over the past two years. A lot of workplaces have adopted more flexibility, with employees using a hybrid model of working both from the office and from home. Some have even abandoned the physical office altogether – or at least now only ask employees to come in once a fortnight or once a month.
This has presented new challenges for managers and business owners, but it’s also introduced new efficiencies – especially when it comes to communication. In many cases, it’s also made output and productivity the main gauges of employee performance.
7. Outsourcing becomes even bigger
With labour shortages and flexible working now very much part of our daily lives, we’ve noticed outsourcing is also on the rise too. To some extent, we believe that’s because employers are now used to having high-quality work performed offsite. But we also think it’s part of a push to keep costs down in light of rising wages and high inflation.
Either way, outsourcing functions – including HR – was a major trend we noticed this year and one we believe is likely to continue in 2023.
If you’d like to know more about outsourcing your HR function, 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 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 breached his employment contract when he worked for the competitor within his three-month notice period.
- A nine-month restraint was reasonable and, therefore, enforceable in both contracts.
- The employee breached the ‘exclusive employment clause’ when he helped the competitor poach another employee.
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.
If you’d like to know more about restraints of trade, get in touch.
Alternatively, you can read the full decision here.
Labour shortages and rising wages mean employers need to do more with less. So, if you’re one of the many business owners who find they have too many HR tasks and not enough staff to complete them, here are six HR tasks we think you can automate, outsource or eliminate.
1. Managing leave
Many employers still rely on an employee to stay on top of everyone’s leave entitlements. But these days, managing leave entitlements – including sick leave, annual leave, carer’s leave and long service leave – can all be automated.
When it comes to sick leave, some of today’s HR software can automatically follow up with employees, make sure they’ve submitted a doctor’s certificate (which they can do via their phone) and then notify team leaders and managers of their absence.
Best of all, modern HR software can let you identify trends in people’s sick leave – which can be great for identifying mental health issues and minimising potential psychological harm to employees.
Using an automated system to track annual leave can also give you complete visibility over when people will be absent. It can also reveal when you’re likely to be short-staffed, based on your workflow – and even potentially recommend critical times employees should be encouraged to take leave.
Not only is there no need to have someone doing this all manually anymore, but by automating, you could eliminate risk while also giving yourself a strategic advantage.
2. Timesheets and payroll
If you have someone processing timesheets and payroll manually, now’s the time to rethink your approach.
There’s excellent software out there that will do this for you much more efficiently and cost-effectively. It will automatically ensure you’re complying with relevant tax, superannuation and employment laws, submit what you need to the ATO, and generally make your life as easy as possible.
Or, if you want a more comprehensive offering involving a human touch, you could outsource it.
3. Hiring new employees
Hiring new employees is a function we often fundamentally associate with HR, but it could be one best performed by someone else. After all, it’s something that’s vital to your business and its ongoing success, but it also requires specific skills and processes. And depending on the size of your business, it can chew up a lot of your resources.
These high-impact, low-volume tasks are often the very best ones to outsource. There are specialists, such as recruitment companies or a virtual HR provider like ours, who can tap into their network, offer impartiality, and help you select the best candidate. We can even work with you to develop a strategic plan for attracting and retaining talent for the long term, so that you know what you need ahead of time.
4. Performance reviews
Performance reviews have traditionally been another fundamental part of the HR process – and a part that can take an extraordinary amount of time. They’re also one aspect of the relationship between management and employee that can be sensitive, fraught with risk, and carry long-term implications for workplace productivity and culture.
That’s why this is another part of the HR process that often makes sense to eliminate from your in-house function and outsource, saving time and money.
Making sure your organisation complies with employment and HR laws can be complex. It can also be something that can consume your HR professionals, keeping them away from the areas in which they excel.
The good news is that these days, HR software will make sure you’re complying with some of the rules and regulations you need to. And, for a high-level, or strategic view, you can always outsource.
6. Writing policies and procedures
Again, writing policies and procedures is laborious, and it’s also easy to get things wrong – potentially opening your organisation up to legal exposure. And yet, writing complex, sometimes specialist policies and procedures often falls to generalist HR professionals. A better approach is often to outsource this work to people who specialise in the area so that you know you’re following best practice and setting yourself up for success.
Looking for ways to eliminate more HR functions?
HR covers a range of functions from the strategic through to the detailed, and it’s often virtually impossible to hire people with all the skills you need. By outsourcing some of the tasks and automating others, you can make sure you’re always running the most efficient and cost-effective HR function possible.
If you’d like to know more about how these changes specifically impact your workplace, get in touch.
The Albanese government has pledged to criminalise wage theft. We explore what it means for you and your business.
Why wage theft is an issue
A PWC study found that Australians were underpaid $1.35 billion a year due to wage theft. The report also found the practice was especially rife in industries such as construction, healthcare and social assistance, hospitality and retail.
There have been several recent high-profile cases involving actual or alleged wage theft that have involved companies as large as Wesfarmers and Woolworths – which shows just how widespread the problem could potentially be.
The government says wage theft should be high on the agenda because it disproportionately affects vulnerable workers, including women, young people and migrants. It also says that wage theft is so rife that some employers have even built it into their business models.
To combat this, it will attempt to change the Fair Work Act to penalise employers and individuals who actively engage in wage theft. The government has also indicated that this is likely to include the possibility of imprisonment in extreme circumstances.
Existing wage theft laws
Section 539 of the Fair Work Act 2009 makes it a civil offence to knowingly underpay employees, punishable by up to $133,200 for individuals in the case of serious offences. But the government’s proposed new laws propose to go further.
In doing so, they are likely to be more similar to some state-based wage theft laws, including those of Victoria, Queensland and Western Australia. The Victorian laws, which came into effect in early 2021, make it a crime for employers to:
- deliberately and dishonestly underpay employees
- deliberately and dishonestly withhold wages, superannuation or other employee entitlements
- falsify employee entitlement records to gain a financial advantage, and
- avoid keeping employee entitlement records to gain a financial advantage.
The penalties for individuals who commit these offences in Victoria can be a fine of up to $218,088 and up to 10 years imprisonment; for companies, it can be a fine of up to $1,090,044. We should expect the same to happen federally.
Staying on top of underpayment
While the new wage theft laws will be aimed at those who deliberately engage in wage theft, you can still be penalised for inadvertently underpaying your staff – and may face the prospect of having to make significant backpay.
For that reason, you should always stay on top of your minimum payment obligations, which tend to take the following hierarchy:
- National Minimum Wage Order. This is set by the Fair Work Commission and s the absolute minimum amount Australian workers can be paid.
- Modern Awards. These set minimum wages for people performing work in different industries and apply on top of the National Minimum Wage.
- Enterprise Agreements. These bind specific employers or groups of employers and their employees.
- Employment contracts. These set the conditions between an employer and just one employee.
Some employers may face the prospect of having multiple instruments or agreements specifying different rates. In this instance, it pays to remember that individual contracts can’t usually provide rates lower than those that would otherwise apply.
Australia’s wage laws can be complex, but it’s vital you’re across them. It’s also obviously important, both ethically and legally, that you never wilfully underpay staff.
If you‘d like to know more about your obligations, get in touch.
The new Albanese-led Labor Government promised to make employment one of its major priorities. Central to this promise was its recent Jobs Summit, in which unions, employer groups and others came together to discuss and – hopefully – address many of the issues impacting Australia’s workplaces right now.
We look at the four issues employers need to be across as a result of the Summit.
1. A change in bargaining
The relative decline in wages has been a major issue affecting Australian employees for some time. Even though the economy has been in a state of consistent growth for 30 years (except for the pandemic), workers haven’t always seen their wages go up.
In fact, despite strong employment figures, wage decline actually seems to be gathering pace, with the average Australian’s real wage falling 2.5% over 2021.
Employers and unions both agree that the current system of enterprise bargaining has failed to deliver the right ingredients to address this wage decline. However, they’re offering different solutions to fixing it.
The ACTU wanted to see multi-employer bargaining introduced, which would mean negotiating with several employers at once rather than on an individual basis. Employers groups opposed this approach and wanted further talks.
The government has backed the unions and will begin introducing legislation to support the change.
2. Better off overall test also overhauled
Unions and employer groups found common ground when it came to the ‘better off overall’ test. This is the test the Fair Work Commission uses when assessing an agreement to make sure a worker is better off under its terms compared to those of the relevant Award.
All parties agreed the test, which was introduced by the Rudd Labor government, was unnecessarily complicated. Changes will include giving the FWC more flexibility in applying the test, as well as removing the need to it consider hypothetical scenarios.
3. Gender equality on the agenda
Female participation in Australia’s workforce is significantly below male participation. The latest data shows that 71.0% of workforce-aged men participate in the labour market compared to 62.3% of women. The well-publicised gender pay gap is also widening, with the latest data showing a 14.1% difference between men’s and women’s wages.
In response, unions and employers agreed that childcare was a priority. Many called on the government to bring forward its pledge to further subsidise childcare (one of its election promises). Currently, that won’t happen at least until after the October Budget.
Beyond this, many are arguing for further discussion on ways to make work more flexible and accommodating to women, who still often find themselves responsible for the lion’s share of family and domestic duties. This is likely to be an area that receives considerable attention over the next few years.
4. More migration
You only have to walk through any Australian shopping centre to see the effects of our current workforce shortage – with help wanted signs now adorning many stores. However, this same problem permeates virtually every sector, and employers especially wanted something done about it
In response, the government has agreed to temporarily lift Australia’s migration quote from 160,000 to 195,000. To support developing local skills, it has also agreed to increase the number of fee-free TAFE places by 180,000.
So what can you do now?
Our employment sector is likely in for a shake-up over this term of government, and the Jobs Summit points the way to the direction that’s likely to take.
Employers should make sure they stay across the detail and adjust to the changing employment landscape.
Want to know more?
If you’d like to know more about the Jobs Summit and how it impacts your workplace, get in touch.
A growing number of employers are introducing ‘life leave’ for employees. Should your organisation be doing the same?
We explore what is how, how it works and the potential benefits (and disadvantages) of introducing it into your workplace.
What is life leave?
Life leave is a broad type of leave that lets employees have time off simply to do non-work related things. This could be anything from being at home so that work can be done on your property, having a day off for your birthday or even just taking a mental health day.
Different types of life leave
There’s no single template available which means different employers implement it differently.
For instance, EY Australia introduced unpaid life leave for its employees in 2019, giving them between six and 12 weeks to ‘explore interests’ outside of work, such as travel or study. In contrast, in 2020, CBA introduced three days’ paid life leave for its employees.
CBA’s policy had its critics because, at the same time, some employees’ sick leave entitlements were reduced from 15 days to 12 days. CBA also only allowed employees to take the life leave entitlement if they’d used up their entire annual leave entitlement of previous 12 months and had less than a total 20 days’ accrued annual leave.
Still, an internal survey released by CBA showed an overwhelming majority of employees – as many as 80% – welcomed the move.
Why wouldn’t you just increase annual leave?
Annual leave is different from life leave because it is a statutory entitlement for all employees regulated by the National Employment Standards (NES).
That means the NES provide for the situations under which an employee is entitled to annual leave and outline the minimum employers must provide. Importantly, they also specify that it ‘accumulates’ – something which isn’t necessarily the case for life leave. Also, under many Awards and Agreements, employees are entitled to a leave loading when they take annual leave.
By introducing this new type of leave, employers have greater flexibility and can stipulate whether it accumulates, whether it’s paid or unpaid and whether leave loading applies.
The pros and cons
The advantages of introducing life leave into your workplace include the following.
- Employee motivation and retention. It can be used as an effective way to boost morale and productivity at a time when wages are rising.
- Flexibility. To some extent, you can control when and how employees take life leave, whereas other types of leave can be more regulated.
- Breadth of use. Employees often like alternate leave because they’re usually not constrained in how they can use it.
- Attracting new employees. In a time when the war for talent is intensifying, this can be a great way to stand out from the crowd.
- Millennial appeal. Studies show that millennials value flexibility and diversity, and this leave can be a good way to appeal to these newer employers.
- Cost effectiveness. Depending on your obligations, you may not have to pay leave loading or allow employees to accumulate leave.
There could, however, be some downsides to introducing life leave too.
- The cost. Regardless of any cost savings compared to annual leave, giving all your employees any form of extra leave can be a costly exercise.
- Workplace absences. If you’re a business that’s already ‘pushed to the limit’, giving staff extra time off may mean you’re less productive.
- Unnecessary. If employees already enjoy other perks, such as additional annual leave or sick leave, introducing even more leave may be of limited benefit.
What alternatives are there?
If it all seems a bridge too far for your workplace but you want some of its benefits, you could always introduce more paid – or unpaid – annual leave. Alternatively, a lot of workplaces we work with have perks such as a day off for a birthday, a day off for family commitments, an extra long weekend or two a year or flexible public holidays. Some even offer unlimited leave.
Should your workplace introduce life leave?
Whether or not you should introduce life leave at your workplace depends on a number of factors, not least of which is the type of work you do. After all, while life leave lends itself to service-based jobs – such as accounting or financial services – it would be a much trickier proposition in industries that require someone to be present – such as manufacturing or retail.
That said, the flexibility that comes with life leave – both from an employer and employee perspective – makes it an increasingly attractive proposition.
If you’d like to know more about introducing it into your workplace, get in touch.
Many employers see probation periods as something of an insurance policy when it comes to recruiting staff. If things don’t work out in the first six months, they potentially give you the option of ending the employment relationship without incurring significant costs or facing lengthy legal action.
But with labour shortages, wage rises and mass resignations a feature of the employment landscape in 2022, do employers need to be a little more circumspect when it comes to terminating a probationary employee’s employment? We explore everything you need to know about probation periods in 2022.
The case against terminating employment
Let’s begin by looking at when terminating isn’t the best path.
Hiring and firing employees is an expensive business. In 2019, I wrote about how to terminate employment when someone is on probation. Back then I noted that one US study found that the cost of losing a staff member and re-hiring generally equates to around a third of their income. In other words, if you need to fire and re-hire someone on $60,000 a year, expect it to set your business back $20,000.
That study was made in a very different labour market than the current one too. Today, the costs are likely to be much higher, given just how difficult it is to find good employees.
That means terminating someone’s employment – even when they’re on probation – isn’t something you’d do lightly.
But, still, there are times you really should dismiss an employee, especially where the cost of their continuing underperformance will be much bigger in the long run.
How do probationary periods work?
Even when you’ve done all the right things in the recruitment process, you’ll sometimes make mistakes. After all, you can’t be 100% certain about anyone’s work – or how they fit into your organisation – until you actually see it for yourself. Probationary periods are designed to get around this, letting you use an employee’s early time with you – usually between three and six months – to assess whether they’re right.
If they’re not, well, you have the opportunity to end the employment relationship without the same legal obligations you’d have towards a more long-standing employee.
That said, an employee still has some entitlements during probation. For instance, they’re still entitled to the 10 National Employment Standards and some of the protections contained in the Fair Work Act 2009.
This means you’ll have to provide them with a week’s notice of termination (or at least payment in lieu of this notice period). They’ll also be entitled to be paid for any annual leave they’ve accrued.
What they usually won’t be entitled to do, is to bring an unfair dismissal claim in the Fair Work Commission. However, under the Fair Work Act 2009, employees can’t bring an unfair dismissal for the first six months of their employment anyway – or 12 months where the employer has less than 15 employees.
The key: An effective probation period
The key to getting probation right – especially in today’s environment – is to run an effective probation period. This means not just giving your employee the opportunity to prove themselves but also helping equip them with the skills they need to be a good employee.
Here’s how I think you should do that in 2022.
- Schedule regular meetings. All employees need guidance but that’s especially true of new employees. And it’s even more true when many of us are working more flexibly than in the past. Whenever someone is on probation, I recommend meeting with them weekly – or at least fortnightly – to discuss performance, highlight your expectations and answer any questions they may have. If you’re working remotely, I think this needs to be even more regular still. A daily Zoom chat – or at least a chat every other day – can go a long way to making sure everyone’s on the same page and your employee is meeting expectations.
- Raise issues when they occur. You don’t necessarily wait until you’ve arranged a meeting to raise issues. You should be giving feedback on every item of work that your new employee engages in so that they know your expectations right from the start.
- Be specific. If you do have an issue, be specific with what it is and what they need to do to improve. Set goals and milestones for them where you think this will help.
- Be honest. Everyone likes to be liked, even (or especially) bosses. But in my experience sweeping things under the carpet instead of confronting them, head-on almost always leads to worse outcomes.
- Warn them. Where someone does need to improve, let them know what will happen if they don’t lift their game and meet your expectations.
- Be fair. At the same time, don’t go overboard with criticism. Nobody’s perfect and your new employee needs to feel free to make minor mistakes as they learn.
- Give them time. Now more than ever, it’s important to give someone time to correct. If you do notice problems, give them time to correct it. Allow a week to see if it improves, or a fortnight or even a month if need be. Just let the employee know what’s expected and exactly how they need to improve.
Can you extend a probationary period?
With labour in short supply, you might be tempted to extend an employee’s probationary period, effectively giving them a second chance. But are you allowed to do this?
The answer is that it depends on what the contract of employment says. Some employment contracts will provide that the employer can extend probation in certain situations. If the employee is covered by an Award or Agreement, you also need to be mindful of this too.
At the same time, always remember that the employment laws, most notably the Fair Work Act 2009, still apply. That means, that if you extend an employee’s contract beyond the statutory probation period, they will have the right to bring an unfair dismissal claim, as well as to all the other entitlements of other employees.
With that in mind, there may be little point in attempting to extend a probationary period because the employee will have all the same rights as other permanent staff members.
How to terminate an employee when they’re on probation
While you can terminate a probationary employee’s employment without having to go through some of the requirements of a permanent employee, you can’t just dismiss a probationary employee for any reason you like.
Even if they can’t access unfair dismissal remedies, probationary employees can access unlawful termination remedies from the moment they start working for you. That means you can’t terminate their employment for a prohibited reason, such as temporary absence from work, union membership, making a complaint or on the basis of race, gender or pregnancy.
If you are terminating employment for a legitimate reason, you don’t have to wait until the end of the probationary period before dismissing them. When you’ve done your best and you really have reached the point of no return, my view is to act now and begin the process of hiring someone to replace them.
Need a bit of help on how to do that in times like these? Read our Ultimate Guide to Hiring New Employees.
Terminating a worker’s employment can be fraught, even when they’re on probation. And never has there been more at stake than right now. Get in touch if you’re unsure about one of your new employees and need a guiding hand.
It has been a very big couple of years for all of us, with workplaces disrupted and more people working remotely than ever before. I think that has real implications for the way we should be measuring and giving feedback on performance, and during performance reviews.
The ‘no surprises’ performance review
Let’s get one thing straight: the age of the traditional performance review, where an employer tells an employee whether they’re doing well (and hence whether they’re getting a pay rise), is over. Or at least it should be. I’ve always believed that if someone walks out of a review surprised by what was said to them, there’s a problem. And that goes for the manager as well as the employee. That’s because performance reviews should never be a once-off. They should be part of the ongoing, consistent way employers manage and engage with staff. Being a good manager is raising any feedback – positive or negative – at the time it’s relevant, preferably no later than at a weekly check-in. Most importantly, it also means ‘coaching’ your employees. This involves engaging in a two-way dialogue where you listen to their concerns and encourage them to speak up about their challenges and goals. There’s no need to save them up for one every six months, or once a year for a performance review.
Coaching in the time of COVID
A lot of employers already understand this but some have let coaching slide during the pandemic. Others have struggled to take it online. However, this really is when we need it most and technology has actually made it easier than ever to build a coaching culture in your organisation. Zoom, Google Hangouts and Microsoft teams let you meet with employees distraction-free whenever you need to. Moreover, the idea of people being away from the office actually makes it more important (and efficient) to schedule ongoing, regular catchups. By checking in and having regular catch-ups, you’re keeping people engaged with the workplace and their careers. That helps keep morale and productivity high and your business churning along. So if your team is working remotely or you’re running on the hybrid model, schedule a weekly half-hour meeting with every team member and ditch the big performance review. Use it to coach and guide them, keep them engaged and, most importantly, listen to their concerns and aspirations.
What to discuss when you’re coaching employees
Instead of using the performance review to hand out brickbats and bouquets, the coaching approach should centre on four big ideas:
1. Giving people leeway to make mistakes. Use your weekly catch up to find ways people can take on new challenges. Focus on productivity and give them the autonomy to do the task the way they want to (within reason, of course). Just make sure you also offer adequate support.
2. Taking calculated risks. Encourage people out of their comfort zones and stretch them. Just don’t push them beyond their capabilities.
3. Having honest conversations. If you’re not prepared to let them take on work they want to, or if you can’t address their concerns, let them know why.
4. Asking questions. Try to understand what motivates people and where they want to be in their careers. Inspiring and motivating people begins with understanding what makes them tick.
The benefits of the coaching approach vs performance reviews
Once you step beyond the traditional performance review model and move towards a coaching-based model, you’ll potentially open up so many benefits for your business, including:
1. Empowered employees
You’ll give employees the opportunity to align their work with their own private and professional goals. This is likely to mean they’re capable of taking on more responsibility as well as more complex challenges – something that has the potential to deliver real benefits to your business. It lets you set and review goals more frequently, giving your employees the opportunity to stretch themselves and build the skills they’ll need to advance their careers more quickly.
2. More accurate insights into employee performance
Coaching helps remove subconscious bias. As long as five years ago, McKinsey research revealed companies that have ditched the traditional performance review for the ongoing coaching model have access to a more rational, less subjective analysis of employee performance. This even includes automating many measures of performance that were traditionally undertaken through more subjective human assessment. It also includes using apps to collect exact data on how an employee performs.
“By getting rid of bureaucratic annual-review processes—and the behaviour related to them—companies can focus on getting much higher levels of performance out of many more of their employees,” McKinsey notes.
3. Better staff retention
A coaching-based approach lets employees have their ideas heard regularly. And that’s key to helping them know they’re a valued member of your team. Studies show that valued employees are also more likely to be more engaged and therefore more loyal employees – vital at a time when the war for talent is intensifying. Not only does that mean you’re more likely to hold onto key talent, but you’ll also incur less in staff turnover costs.
4. More efficient
Believe it or not, regular ongoing coaching will actually save you time and money compared with a traditional performance review. After all, you’ll cut down on all the unnecessary admin that comes with a performance appraisal.
We have a wealth of experience helping businesses like yours build a coaching-based model into everything they do. If you’d like to know more, get in touch.
It is hard to stay motivated in uncertain times, and there has rarely been a more uncertain time than this. We look at how you can keep your staff productive and engaged through COVID-19.
By its very nature, business is uncertain. Conditions can change, technological disruption can happen and, as we’ve found out over the past 18 months, a one-in-100 year pandemic can occur.
The uncertainty caused by COVID-19 has been like nothing most people have experienced in their lives. Restrictions have forced us out of the office, the way we’re working has changed and some of us haven’t been able to work at all. Meanwhile, many careers have been put on hold and the connections that we took for granted in the workplace have disappeared. All of this can reduce morale and become very demotivating for staff.
So if you’ve noticed your people becoming demotivated, lethargic and unproductive in the face of this uncertainty, here’s what you can do.
1. Be upfront
One of the worst things you can do as an employer is to pretend it’s all ‘business as usual’. Sweeping things under the carpet and expecting people just to keep going is likely to have the reverse effect, causing many to become disillusioned and disengaged
You need to acknowledge that your people are likely to be fearful and that this is a normal reaction in times like these. So let employees have their say and provide the space for them to voice their concerns.
Just remember, that you also need to acknowledge that there are many things outside of your control and, while you’ll do your best you can’t guarantee everything.
2. Ask for feedback (and act on it where you can)
If you want people to stay motivated and keep getting their work done ask them how you can help facilitate this, especially with so many of us working from home. These aren’t normal times and, to some extent, you still need to be prepared to allow people some space to process what’s happening.
Find out what they would like to help get their work done and what you can offer them to make it happen. That might be something like allowing extra autonomy, providing better tech support, moving meetings to different hours or allowing earlier or later starts.
3. Control the controllables
While you can’t control everything, you can control some things. You can probably also adjust some of these to help your employees stay motivated. For instance, letting people work different hours, readjusting meeting time to take account of people’s lives or focusing on productivity rather than time spent at the desk, can all help people stay engaged.
Alternatively, now that we’re returning to the office, allowing people to continue to work from home a few days a week could help people stay positive.
4. Check in
One of the most important ways to stay motivated is simply to check in regularly. After all, with little water cooler conversation happening right now, we’re missing many of those little interactions where we talk about things other than work. If people are at home, you could arrange a Zoom chat once a week or every other day, where interacting comes first and work second. If you’re back in the office, you could make this face-to-face. Just five minutes can help you feel as though you’re working on the same page and towards the same goals.
5. Keep up the social side
For many people, the social side of working for a team is the best part of it and COVID-19 has largely taken this away. That can be a major demotivator. So do what you can to keep this alive. If your people are working from home, why not arrange a weekly Zoom call for your group where you talk about things. If you’re back in the office, make sure you keep that Friday (or Thursday) drinks going – at least to the extent you can within COVID restrictions. You could even hold virtual trivia nights or other games nights, just to keep up the fun and remind people that they’re part of a good team.
6. Let them in
No one wants to be working towards a goal and then have it pulled from under them. Few things are more demotivating than constant surprises. In uncertain times, one of the best ways to keep employees motivated is simply to let them know what you’re thinking and where you’re headed. Share your business strategy with them, so they know the bigger picture. Let them know why you’re doing things the way you are and how you intend to do them going forward. The worst thing you can do is to allow unnecessary ambiguity because people will fill that space with their fears.
With so much uncertainty, it’s little wonder that people are unmotivated right now but there is something you can do to make it better. If you’d like to know more about what your organisation can do, get in touch.
When you engage an HR consultant, you expect them to take your human resources headaches and challenges off your hands. In the process, an ideal HR expert will help take your business to the next level. But what are the qualities they need to do this?
We’ve identified six key characteristics we think an outsourced HR consultancy should always have.
HR quality 1: Commerciality
Probably the most important characteristic of any HR consultant is commerciality. In business, time and money are everything. Your HR consultant needs to be able to assess risks, limit costs and make accurate calls quickly and decisively. They need to be able to understand your bottom line so they use their judgement to make effective commercial decisions. That never means acting unethically or breaching the law. Even putting the morality of this aside, the commercial risk of doing so is far too great. But it does mean being able to weigh up the pros and cons of different HR strategies and then having the judgement to choose the one that delivers the best long-term financial outcome.
HR quality 2: Leverage
An effective HR consultancy isn’t just one person. Nor is it simply a group of senior human resources practitioners who charge high rates and only want to be involved in the strategic decisions your business make. I think a good HR consultancy should consist of a team of HR professionals who operate across all levels of the business. They should have the capacity to perform every one of the HR functions you don’t have in-house – from the strategic to the administrative and from the day-to-day to the once-off projects. I say this because every business has different human resource needs. In fact, even the same business’ HR needs will change from time-to-time. Any HR consultancy you engage should be able to account for this and should have the in-house skills, expertise and experience to deliver what’s in your best interests, no matter what they are or how they evolve.
HR quality 3: The human touch
Believe it or not, the clue is the name: human resources is about humans, not just numbers. Every HR decision you make will directly impact on people in your workplace. In that sense, it’s unlike any other of your commercial functions. I think that means your HR consultants should be human too. They should understand the workplace culture, and know how to treat people tactfully, sensitively and with empathy. They should have the experience and astuteness to know what makes people tick and what they need to do to motivate them or change their behaviour. And they should be able to bring people into their confidence without ever being unprofessional.These are qualities you simply can’t – and won’t – get from off-the-shelf and highly automated HR solutions and one of the reasons why it’s always worth paying for a professional HR consultancy.
HR quality 4: Flexibility
The one constant about business is that there are no constants: your strategy and ambitions get modified, customers or clients come and go, staff turn over, new markets open up, new roles are created and the opportunities and risks vary and evolve. An effective HR consultant knows this and can change and grow with your business.I think the best way they can achieve this is by choosing an HR consultant that’s neither too small to cope with change nor too large to be nimble. Putting it another way, they should be small enough to know your business intimately but large enough to have all the skills and knowledge they need to serve you as you change.
HR quality 5: Curiosity
Speaking of which, I think a good HR consultant should be staffed by a team of forward-looking, curious and engaged people who are genuinely interested in and motivated by what they do and are prepared to keep learning. The field of HR changes all the time and your advisers need to be the ones who keep up with it.
But I think their curiosity should extend beyond just their individual area of expertise. They should also be curious about both business and the world around us more generally. That way they’ll be able to frame any advice they give in a broader context rather than solely within the confines of human resources.
HR quality 6: Collaboration
The final vital skill your HR consultant should have is the ability to collaborate. They should act as a true business partner – someone who gets where you’re coming from and helps you achieve it. This means understanding your vision for the business and working out what they can do to make sure it happens. It also means listening to your concerns and challenges and responding to help you overcome them. But as a true partner, your HR consultant should also be thinking about what they can do to proactively help your business, whether that’s in introducing new efficiencies, helping you stay on top of risks or being one step ahead of the changing regulatory landscape. In short, it means seeing themselves as an integral part of your team and understanding that your future and their future are intertwined.
Are you ready to find your HR consultant?
If your HR partner has these six qualities, they can help drive your business forward so that your staff are productive, your risks are managed, your costs are kept down and your goals are met. Catalina Consulting is a professional HR Consulting firm, offering a wide range of services including custom HR solutions. If you would like to know how we can help you take your business to the next level, get in touch today.