wh&s laws blog

New workplace health & safety laws: Do you need to make any changes?

NSW has become the latest state to introduce new legislation increasing the consequences for employers who fail to abide by the Work Health and Safety Act 2011. This is following the federal Government’s introduction of the ‘Closing Loopholes’ legislation, which had a significant workplace health and safety component that proposed laws such as:

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Why employers need to be focusing on mental health in the workplace

Mental health has been a hot topic in our society generally over the past few years, especially after we started to emerge from the pandemic induced lockdowns. These trends in society have been mirrored recently by regulatory bodies across Australia creating various safety regulations, frameworks and codes of practice, meaning that employers now have much more responsibility surrounding mental health risk factors in their workplaces.

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New changes to shutdown laws

The phrase “shutdown” has typically been defined as a period when a business temporarily closes operations. Shutdowns typically occur over Christmas, or some other holiday period, in businesses that operate seasonally, or in the event the business needs to close for maintenance. Generally, employees are made to take either paid or unpaid leave and don’t have much flexibility or choice in this area.

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Easter Sunday Public Holiday Change in Northern Territory

Similar to what happened in 2022, the Northern Territory will observe Easter Sunday as a Public Holiday in 2023. While the Public Holidays Act 1981 (NT) does not contain Easter Sunday as a permanent public holiday, section 6 of the Act allows the Minister for Employment to gazette additional public holidays. As a result, Easter Sunday 9 April 2023 will now be considered a public holiday observed in the Northern Territory.

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Paid parental leave changes

Legislation has been passed to boost Paid Parental Leave (PPL) by an additional 2 weeks. This is the first tranche of changes with further amendments expected to be introduced before July next year.

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Fair Work Act Prohibition on sexual harassment has commenced

When are the changes happening?

The introduced prohibition on sexual harassment from the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 has now come into force. The prohibition applies where the sexual harassment occurred, or is part of a course of conduct that commenced, on or after 6 March 2023.

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Transfer of business: employee entitlements

When an employee has a change in their employing entity, such as when a business is on-sold, it can be difficult to understand what happens to an employee’s existing employment entitlements. This article aims to summarise how these entitlements are treated when a transfer of a business occurs.

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What is causing underpayments of employees’ wages?

Australia has 120 Modern Awards, plus many enterprise bargaining agreements in place, to ensure employees are paid fairly for their work. Within these awards and agreements there are many provisions relating to different penalty rates and entitlements employers must provide to their employees. When these provisions aren’t met, employees can be underpaid their correct wages.

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whistleblower policy

What is a whistleblower policy and do I need one?

Whistleblowing has become an important consideration for not only large businesses, but businesses of all sizes. Whistleblower laws were brought in under the Corporations Act 2001­ (and other laws) and created a legal obligation for many larger businesses to have a whistleblower policy. However, the benefits of utilising a whistleblower policy, as a means to receive any concerns or complaints, goes much beyond merely complying with the law.

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$3 million Fine for Industrial Manslaughter

Industrial manslaughter is a criminal offense that occurs when a person or a company causes the death of an employee or a member of the public due to negligent conduct. In Australia, the issue of industrial manslaughter has been a topic of concern for many years, with a number of high-profile cases highlighting the need for stronger laws to hold employers accountable for workplace deaths.

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What has changed under the ‘Secure Jobs, Better Pay’ industrial relations reforms?

The Federal Labor Government has introduced their industrial relations reforms through their Secure Jobs, Better Pay Bill which has now been passed and is also known as the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022. In this legislation there are a number of key changes that businesses will have to adapt to, now that it has been passed. These changes impact various diverse areas, from enterprise bargaining to sexual harassment prevention. Note: This is updated as of 22/02/2023.

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Why payroll compliance needs to be a top priority for all businesses

Payroll compliance was thrown into the spotlight a number of years ago, when it was uncovered that many well-known Australian brands had underpaid their staff by millions. Since then, there has been a steady flow of organisations from various industries who have been found to have underpaid their employees. The Fair Work Ombudsman (FWO) responded by increasing their use of detection and enforcement measures and targeting areas that were shown to have higher levels of non-compliance.

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Genuine Redundancy (2)

The requirements for a ‘genuine redundancy’

Recently a company was making an employee redundant due to a restructure of the business. You think this is a straightforward exercise? But for an Award or Agreement covered employee you have to get the formal consultation process right! Unfortunately the company failed to do so and had to go to the trouble of running an unfair dismissal case. In this article we explain the ‘genuine redundancy’ requirements, and the formal steps the employer has to follow to avoid an unfair dismissal case.

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staff handbook (2)

The benefits of having a clear staff handbook

Irrespective of their size, companies have a wide range of policies and procedures in place that their workers need to be aware of – which is why a staff handbook can prove useful. Comprehensive and easy-to-understand employee handbooks should detail employment policies and procedures, clearly articulating your business’s expectations of employee behaviour and performance in their roles.

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Disciplinary procedures in small offices

Disciplinary procedures in small offices

Disciplinary procedures are a normal, yet important part of any workplace, regardless of size. However, across different businesses, the disciplinary procedures and when they are used can differ a lot. This can be due to a number of factors, including accepted standards of behaviour or the approach of the owner or manager.

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The Salt Shaker Method

The Salt Shaker Method was created by a New York restaurateur to demonstrate the key principles of managing employees and keeping their performance up to a certain standard. The method outlines the concept of constant, gentle pressure which ER Strategies General Manager David Price, explains in the video below.

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ER Strategies Referral Program FAQs

ER Strategies has recently launched its new referral program, designed to benefit many of our awesome clients who have been spreading the word about our services for many years. If you refer someone who signs up for one of our WorkShield packages or otherwise spends a minimum of $2,500, you will receive a $150 voucher as a reward.

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The Champion Method – Managing the Redundancy Process

ER Strategies has operated since 1999 and in that time, we have had clients approach us with many different situations. These situations have led us to develop a number of strategies through understanding what works and what doesn’t. One such strategy that we have used over and over again is the ‘Champion Method’. Designed by ER Strategies’ Director, the strategy increases the employee’s input in a redundancy process to achieve a mutually beneficial outcome between the employee and employer.

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What does a record amount of underpayments mean for businesses?

On 8 August 2022, the Fair Work Ombudsman (FWO) has announced that a record $532 million in unpaid wages and entitlements was recovered for more than 384,000 workers in 2021-22. The recovered amount is more than three times more than the record 2020-21 amount of $148 million and has benefited five times more workers within Australia.

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Everything you need to know about whistleblowing

What is whistleblowing?

The act of whistleblowing involves identifying and calling out misconduct and harm to consumers and the public. Whistleblowers are mainly covered by the Corporations Act 2001 (Cth) (Corporations Act) which provides them legal rights and protections, although other legislation can also protect them.

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The benefits of payroll audits and why your business needs one

A payroll audit is a review of what employees were paid and the overall compliance throughout the payroll audit process. Under our audit service, an independent calculation is performed of what employees should have been paid and this is then compared to what they were actually paid to identify any under-, or over-payments. Payroll processes, including the record keeping processes, are also checked, ensuring that the whole system is reviewed for any non-compliance.

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What is Wage Theft and how can you prevent it in your business

So-called “Wage Theft”, and wage underpayments in general, have emerged as an issue in Australia over the last 6 years or so. Put simply, Wage Theft is when an employer underpays an employee either intentionally, or with high levels of negligence or recklessness towards their payroll compliance obligations. The level of ‘intent’ is where Wage Theft differs from underpayments in general. 2019 analysis from PwC estimated that underpayments to employees could be as high as $1.35 billion per year. Whilst only an estimate and not focusing on Wage Theft specifically, it can be assumed that despite only emerging as an issue relatively recently, Wage Theft has been occurring long before underpayments were discovered and publicised.

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police checks

Employer Obligations: Police Checks

The Australian Human Rights Commission Act 1986 (Cth) applies to all employers and employees as well as prospective employees – permanent or casual. The Act includes discrimination on the basis of a ‘criminal record’ where an employee is dismissed from employment or denied certain opportunities due to a criminal record. Further, a job applicant may be discriminated against through being denied the job because of their criminal record.

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FWO Priorities 2022-23

What do the Fair Work Ombudsmen’s 2022-23 priorities mean for businesses?

Each financial year, the Fair Work Ombudsmen (FWO) releases its Compliance and Enforcement Priorities. These are designed to highlight areas where the FWO believes there to be a lack of employment compliance, or potential for underpayments, within a specific industry or sector and where they will be devoting their attention and resources in the coming year.

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employee returning to workplace

How to get employees into the workplace

Due to the COVID-19 pandemic, many employees were forced to work remotely. As a result, the advantages of working from home became evident to many. When restrictions were lifted, employers faced resistance from employees who preferred to continue working from home.

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Never Underestimate the Spurned Employee

Never Underestimate the Spurned Employee

Over the years, we have assisted some clients who have had particularly difficult experiences with employees whom they have dismissed (generally before they spoke to us) or wanted to discipline for some reason. In these cases we are talking about, the employee has set out on a path of destruction against the hapless employer, driven by what appears to be rage or at least a desire to get even at any cost.

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Record-keeping rundown: a quick guide on record-keeping obligations

Businesses operating in Australia are subject to a number of requirements around record-keeping obligations. Whilst it may not seem like the most important part of running a business, it plays a significant role in employment compliance and the punishments for not being compliant can severely impact a business. Through this guide we’ll specify what details businesses must record and why it is so important for businesses to record them.

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penalty and allowances blog

What employers need to know about penalty rates and allowances

Once you’ve identified the correct base rate to pay your employees, you’ll also need to ensure that any penalty rates are applied, and relevant allowances are paid. These are often areas where businesses make mistakes that lead to them underpaying their employees, so it is crucial for businesses to understand what they need to pay their employees and when they need to pay them each rate.

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It is important to know the rules and take preventative measures to protect your business from risk.

Busting workplace myths – employee dismissal

It is a common belief amongst employers in Australia that it is okay to fire new employees without notice. Many employers also believe it is okay to terminate employees in the first few months of employment without reasoning or following the proper procedure. But both of these beliefs are simply untrue.

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workplace conflict

Managing Unhealthy Workplace Conflict

When people are thrown together for eight hours a day, five days a week, conflict is probably inevitable. After all, without some lower levels of conflict or competition, workplaces would be very boring places indeed, with little or no differing opinions or exchange of ideas. However, if the conflict escalates there are generally no positives to be gained. 

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Dealing with Sickies

What to do about suspicious medical certificates?

The employee must provide evidence to the employer that they were genuinely entitled to sick leave. Generally, a medical certificate is a legal document that should satisfy the employer of an employee’s inability to work. This doesn’t mean that an employer can’t question the validity of the medical certificate.

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excess sick leave (2)

Take an interest in excess sick leave

Staff who regularly take sick days without repercussions are likely to continue doing so – this will have a negative impact on other workers who may soon start to follow suit, or feel aggrieved because they are at work doing the right thing. There are several theories on best practice when it comes to dealing with absenteeism, but the key is for employers to show an interest.

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Which award should you use

How to tell which award applies to your business?

One of the most common errors we’ve identified that leads to underpayments are businesses incorrectly classifying employees, whether that be choosing the wrong award, or employee classification within it. Ensuring that your employees are being paid under the correct award is the first step to being payroll compliant. Failing to be compliant at these first steps means all other payroll compliance measures in place within your business will be redundant.

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Franchisor reasonable steps requirements 1

FWO issues Franchisor guidelines on ‘Reasonable Steps’

The Fair Work Ombudsman (FWO) – the independent statutory body responsible for enforcing compliance with workplace laws and education – has recently published a resource for franchisors providing guidance on their responsibilities and practical steps that they can implement to comply with the ‘reasonable steps’ requirements.

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Are emails received at work subject to privacy laws?

We recently had a client pose the question “Can we monitor an employee’s emails and what are the privacy concerns?” In researching the answer we came to the conclusion that the law is very confusing, with no one committing absolutely clearly what an employer’s obligations are. However, we offer a practical solution to the issue.

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Resolving workplace disputes

Resolving workplace disputes

Workplace issues pose a number of unique challenges to businesses of all sizes. From day-to-day employee management to specific problems such as absenteeism or situations that result in firing an employee, employers are often required to take a specific action

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Floods, Cyclones, Bushfires and Employer Obligations

Floods, cyclones, bushfires and employer obligations

Most employers will already be aware of the need for flexibility during the crisis and its aftermath in relation to supporting employees during the clean up, difficulties they may face in attending work, providing time off for participation in any emergency services duties, etc. This is of course in the context of their business being able to re-open as quickly as possible and to resume normal business operations.

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easter holiday changes

Easter Sunday Public Holiday Change in Western Australia

A legislative change in late December 2021 has seen employees in Western Australia officially gain an additional public holiday over the Easter long weekend, commencing this year.  Prior to this change, only Good Friday and Easter Monday were gazetted Public Holidays for employees in WA, with Easter Sunday not recognised as a public holiday and treated as a normal day for employers and employees. However, on 16 December 2021, the Industrial Relations Legislation Amendment Bill 2021 was passed by State Parliament, making Easter Sunday a gazetted public holiday permanently into the future.

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Rest and meal break class actions: How do employers protect their business

The issue of meal and rest breaks began with one class action in a single franchise network a few months ago, however now it has evolved to numerous class actions across multiple different franchises. The claims from the workers and their representation are essentially the same, they have been either deliberately denied rest or meal breaks, or the breaks haven’t been enforced as required under the awards or agreements they are covered by.

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employee dismissals

5 mistakes you should avoid when terminating an employee

We often hear our clients say “Help me get this person out of my business!” We like to hear this, as we can provide the correct advice on how to either safely terminate an employee, or manage them to improve their performance so they can provide value to the business. 

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Work-Related Social Events2

Risks of Work-Related Social Events

As with the normal workplace, the employer has a responsibility to take reasonable steps to ensure employee safety and health and to provide an environment free from harassment and discrimination. Inappropriate behaviour at staff functions, which can be attributed to “good cheer” which often accompany these social events, can lead to employers being held liable.

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ERS Insights: Returning to Work (Video)

As COVID-19 restrictions gradually lift across Australia, employees will be returning to work, or in some states, they may have already returned. It is important that employers therefore have a plan in place for their employees to return to work and how they will manage the COVID risk when they are back.

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Why you need to protect you business from General Protections claims

General Protections laws are intended to protect basic workplace rights, including freedom of association and shielding workers from workplace discrimination in accordance with international labour conventions. Under these laws, it is unlawful to take adverse action against a person because of a proscribed reason. Additionally, General Protections laws provide effective relief for persons who have suffered adverse actions, such as being discriminated against, victimised, or have experienced other forms of unfair treatment.

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Wage theft laws now a reality!

Wage theft has become a prominent issue in Australia, with the FWO recovering over $500 million in underpayments across the previous financial year. This figure has been growing year on year, highlighting that the issue has likely been there for sometime, yet is now coming into the spotlight. As a result, both Queensland and Victoria have brought in legislation.

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Terminating employee feature

Terminating an employee – How to avoid business risk and personal stress

The termination of an employment relationship can carry risks for a business, especially if the employee doesn’t agree with the decision. Employer-initiated termination falls into two categories, dismissal of an employee or a genuine redundancy situation. As an example, an employee may be dismissal due to their continued poor performance whilst an employee can be made redundant due to their role no longer being needed within the business.

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Is mediation the answer to workplace disputes?

Conflicts or disagreements within the workplace are common, and often unavoidable. As a result, it is something employers need to have a strategy to come to a resolution without letting the conflict or disagreement develop and impact on the wider workforce and business as a whole. 

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drug and alcohol.

Managing the Risk of Drugs and Alcohol

While employee drinking and drug use during work hours has obvious implications for workplace safety, productivity, and reputation – consideration also needs to be given to the effects of consumption that occurs away from the workplace and out of work hours.

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casual conversion after

Casual Conversion: What happens after offers are made?

Last month, we published a reminder that the deadline for assessing casual employees’ eligibility for conversion to permanent employment and making an offer (or ‘non-offer’) was fast approaching. All employers of casual employees (other than ‘small business employers’) were required to complete a number of actions prior to the 27th of September 2021 deadline, including assessing and notifying casual staff about whether they are eligible for casual conversion under the Fair Work Act 2009.  

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prevent employee issues

Prevent employee issues before they happen

One of the smartest ways for small businesses to nip any employee issues in the bud is to ensure that they don’t crop up- and one of the best ways to accomplish this is to make sure that each new member of staff undergoes a thorough and comprehensive induction process.

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legal termination

‘Legal’ Termination Costing Employers Thousands

Imagine you have a problem employee (perhaps you don’t have to imagine, you might already have one!), who is not up to your performance standards, despite still being on probation. They often come in late, leave early, take sickies and can’t grasp the concept of deadlines. They are frustrating and de-motivating your other employees – and you too.

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revenge seekers

Stopping the Revenge Seekers

Over the years, we have assisted some clients who have had very difficult experiences with employees whom they have dismissed (generally before they spoke to us) or wanted to discipline for some reason.

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Changes to NSW Health Orders for NSW Authorised Workers

Note: This article has been update to reflect recent changes to the Health Orders put forward by the NSW Government. Please review this new information in line with your current practices to ensure you are complying with the updated government advice. Current as at 31/08/2021. 

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Have you reviewed your HR systems lately

Have you reviewed your HR systems lately?

Organisations regularly conduct audits of their financial position. Similar reviews and analysis can be applied to the Human Resources Function, to compare your organisation against industry best practices, review compliance with relevant laws and regulations and to identify gaps.

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Stapled Super Blog

Stapled Super Reforms

Employers must use an employee’s existing super fund, if they have not nominated any other fund via a super choice form. The stated purpose is to reduce super fragmentation for employees, which can lead to multiple sets of fees.

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Small business fair dismissal code

What is the Small Business Fair Dismissal Code?

The Small Business Fair Dismissal Code (the ‘Code’) only applies to small businesses as defined under the Fair Work Act 2009 (Cth), which are those with fewer than 15 employees. In addition, for small businesses, employees are not entitled to claim Unfair Dismissal in the first 12 months of their employment. It is therefore important that small businesses ensure employee dismissals are consistent with the Code to avoid getting involved in an unfair dismissal case which may go against them.

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unfair dismissal blog image

The Ultimate Guide to Avoiding Unfair Dismissal

As Australian employment law develops, it becomes harder for employers to keep up with it. Employees are becoming more aware of their workplace rights too. Therefore, employers must ensure that they understand their obligations when it comes to dismissing employees, reducing the risk of an unfair dismissal or other claim, such as a General Protections claim.

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performance reviews

Performance reviews

Businesses use a number of different strategies to ensure they meet targets and stick to deadlines, including the use of KPIs – Key Performance Indicators.

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recruiting the right people

Recruiting the Right People

Long term labour plans make way for current and immediate needs, and convenient rather than strategic decisions. Here are some tips to recruiting the Right people.

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Five Steps to Addressing the Scourge of Presenteeism

Coined in the mid-‘90s by psychologist, Cary Cooper (Paul D. Hooper, Presenteeism, white paper CIDM Corp, 2012), presenteeism is not only more difficult to identify and manage than absenteeism, there is some suggestion that its cost to the economy is far more significant.

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difficult conversatons

Your Guide to Handling Difficult Employee Conversations

Problem employees can arise in your workplace. Whether they are taking long repeated lunches, treating colleagues poorly, or just acting in an unprofessional way, their actions can impact on the overall workplace so it is important to curb that behaviour. Whatever your situation, the following formula works to address all those sticky issues where you expect resistance, in the most professional and constructive way possible.

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staff induction

Reasons for carrying out a staff induction

Carrying out staff inductions is a crucial step in onboarding new employees and integrating them into the workplace. Not only do they provide training and give the employee an understanding of their role and duties, but is also a good opportunity for employees to familiarise themselves with company culture, policies, and procedures. The induction process should ideally start as soon as a recruit accepts a job offer. So why else should you use an onboarding procedure for your new employees?

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casual employment reform blog

ER Strategies’ Interactive Guide to the Federal Government’s Casual Reforms Legislation is now available!

In late March, the Fair Work Amendment (Supporting Australia’s Jobs and Economic Recovery) Act 2021 (Amendment Act) passed both Houses of Federal Parliament, which amended the Fair Work Act 2009 to include reforms to workplace rights and obligations for casual employees.  The legislation has received Royal Assent and is therefore now in operation, with some transitional arrangements.

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Carrying out workplace investigations – what employers need to consider

At some stage, almost all businesses will be faced with a dispute or conflict between employees, or another situation that must be resolved. In some of these situations, employers must investigate in order to make a clear decision on how to resolve the issue. This is an important part of the employer’s role, however, it can also be an area where risk can arise. Here are some important considerations employers should be aware of when doing a workplace investigation. 

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recruitment mistakes blog

Recruitment mistakes can lead to damages claims! Be Aware.

In our article about a bullying case leading to a record $5.2 million award of damages, we highlighted how employees are now increasingly making general protections claims. However, general protections claims can even be made by people who aren’t even employed in your business. Prospective employees or contractors are protected from being adversely affected due to a variety of attributes including but not excluded to, race, religion and gender. These are called protected attributes. 

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narcissistic employees

6 Key Tips to Manage Narcissists at Work

Individuals suffering from Narcissistic personality disorder (NPD), more commonly known as ‘narcissists’, can wreak absolute havoc on your business. Others who are more borderline as to whether they have a personality disorder, can also be difficult to handle.

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payroll audits

Learnings from our Payroll Audits

Due to requests from some of our franchise clients, we launched our external Payroll Audit Service to review Payroll and Award/Enterprise Agreement compliance at the franchisee outlet level.

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Mobile phone usage policies

We are continually relying on our mobile phones and other mobile devices for everything from checking the weather to keeping in contact with each other on social media. With such a high reliance on mobile phones, chances are your business has had issues with employees using their phones while they should be working.

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Common Causes of Payroll Errors

Due to huge media attention over the past 1-2 years, you will be aware of the variety of large-scale employers underpaying their staff. Woolworths, Coles, Bunnings, respected universities, and IBM have all been guilty of it and faced the consequences. 

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ER Strategies turns 21!

Whilst many businesses are under pressure because of disruptions to their markets caused by COVID, there has never been a greater need for good practical advice, which also checks off all the technical issues employers face whilst navigating Australia’s industrial relations and employment law system, as well as the JobKeeper changes associated with it.

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child employer blog

Child employment laws in Australia

Child employment laws in Australia aim to protect the rights and well-being of young individuals in the workforce. These laws are different for each state and territory and aim to regulate working hours and ensure educational and developmental needs are met.

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