Helping your employer separate employment law facts from HR fairytales will prove your worth to them as a source of expert advice, writes David Bates
If you were asked to sign a complex contract, or charged with an offence, would you rely on information obtained via Google? Would you visit a few ‘online forums’ and follow the advice given by someone with the handle ‘Helpful from Holland’? Would you follow the suggestions given by your friends at the Sunday barbecue because, according to them, ‘that’s just what everyone does’?
Hopefully not. However, it’s extraordinary just how many employers will rely on second-hand information gleaned from unreliable sources when it comes to HR and employment law. Instead of turning to experienced and qualified HR experts, they all-too-often treat HR myths as employment law fact … and it usually doesn’t end well.
Common employment law myths
For example, how many times has a colleague asked you whether they need to give an employee ‘three written warnings’ before they can lawfully dismiss them? This is an oldie but still a goodie, and it’s often then followed-up by a question relating to ‘three-month probationary periods’ which, of course, are nowhere to be found in the Fair Work Act.
Then there are the myths about wages, salaries and leave. Have you heard any of these ones recently:
- I can pay my employees whatever we agree as long it’s above the National Minimum Wage (your reply: not if they’re covered by a Modern Award or an Enterprise Agreement you can’t!)
- I pay my staff a salary, so I don’t have to worry anymore about the Modern Award (your reply: if only the Fair Work Act made things that easy!)
- Some of my employees prefer cash to taking annual leave, so I just pay it all out at the end of each year (your reply: that’s very generous of you, but also unlawful!)
“It’s extraordinary just how many employers will rely on second-hand information gleaned from unreliable sources when it comes to HR and employment law”
Of course, the above examples are just the tip of the iceberg. Many employers also assume that because ‘everyone’ operating in their particular industry are doing things in a particular way, they can too. What many don’t realise is that most of those other employers will either be covered by different Modern Awards or have workplace-specific Enterprise Agreements in place which permit those particular practices.
All of the above said, the fact is most employers are of course trying to do the right thing. Those who get it wrong are usually well-meaning employers who are simply overwhelmed by the complexity of Australia’s highly-regulated labour market. While there are certainly some employers who consider breaking the law and underpaying workers to be ‘the price of doing business’, most are grappling to comprehend detailed Modern Awards, the ten National Employment Standards (NES), and an Act which is currently more than 1000 pages long.
The home truths of employment law
However, employers ‘don’t know what they don’t know’, and this means they may not seek expert advice when they should because they genuinely believe the information they’re relying on is employment law fact when it’s actually HR fiction. That means it’s up to each of us to proactively point out HR myths to our clients, and we recommend starting with these home truths:
- Australian laws protect prospective employees from unlawful discrimination and so-called ‘adverse action’. Even a person your business never employs can, therefore, bring a claim against them (it’s a myth that only existing employees can bring claims)
- Ensure advertised wages or salaries are consistent with underpinning Modern Awards, Enterprise Agreements or, if neither of these apply, with the National Minimum Wage (it’s a myth that you can pay whatever is negotiated, or just the ‘going rate’)
- Issue well-drafted employment contracts which are consistent with the statutory entitlements imposed by Australian law and industrial instruments, such as Modern Awards (it’s a myth that contracts simply override the Fair Work Act, Awards, and Enterprise Agreements)
“Those who get it wrong are usually well-meaning employers who are simply overwhelmed by the complexity of Australia’s highly-regulated labour market”
- Ensure performance management or disciplinary action is never taken ‘because’ an employee is exercising, or proposes to exercise, a protected ‘workplace right’ (it’s a myth that employers have complete discretion to take whatever action they like, whenever they like)
- Always take ‘reasonable managerial action in a reasonable way’ to reduce the risk of bullying-related claims (it’s a myth that bullying only goes on in ‘rough and tumble’ working environments)
- Carefully check whether the employee has completed the applicable ‘minimum employment period’ (it’s a myth that ‘small businesses’ are automatically excluded from the unfair dismissal laws)
- When dismissing an employee for serious misconduct, always provide an opportunity to ‘show cause’ before confirming a final decision (it’s a myth that summary dismissal means you can simply fire someone ‘on the spot’)
Helping your employer separate employment law facts from HR fairytales will prove your worth to them as a source of expert advice, and maybe even help your business live happily ever after.