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TIPS ON HOW TO AVOID COSTLY UNFAIR DISMISSAL PAYOUTS

05-03-2016
by 
in 

With the introduction of the Fair Work Act in 2009 and National Employment Standards (NES) in 2010 many manufacturing businesses are being left in the dark when it comes to understanding their obligations.

It can be common for manufacturing businesses to focus more on their occupational health and safety procedures rather than their Fair Work obligations.

More often that not, manufacturing employees will fall under the national workplace relations system and will be covered by the NES regardless of which award or contract they work under.

When looking at the dismissal of your employees, it’s important that you consider whether employment entitlements are being met against the Fair Work Act and NES.

The NES has set out 10 minimum employment entitlements that have to be provided to all employees.

Whilst employees are working with you keep in mind the following minimum entitlements to ensure you’re not in breach of the NES.

The 10 minimum entitlements of the NES are:

1.     Maximum weekly hours of work – 38 hours per week, plus reasonable additional hours.

2.     Requests for flexible working arrangements – an entitlement allowing employees in certain circumstances as set out in the Fair Work Act 2009 to request a change in their working arrangements because of those circumstances.

3.     Parental leave and related entitlements – up to 12 months unpaid leave per employee, plus a right to request an additional 12 months unpaid leave, plus other forms of maternity, paternity and adoption related leave.

4.     Annual leave – four weeks paid leave per year, plus an additional week for certain shift workers.

5.     Personal/carer’s leave and compassionate leave – 10 days paid personal/carer’s leave, two days unpaid carer’s leave as required, and two days compassionate leave (unpaid for casuals) as required.

6.     Community service leave – unpaid leave for voluntary emergency activities and leave for jury service, with an entitlement to be paid for up to 10 days for jury service.

7.     Long service leave – a transitional entitlement for employees as outlined in an applicable pre modernised award, pending the development of a uniform national long service leave standard.

8.     Public holidays – a paid day off on a public holiday, except where reasonably requested to work.

9.     Notice of termination and redundancy pay – up to five weeks’ notice of termination and up to 16 weeks’ severance pay on redundancy, both based on length of service.

10.  Provision of a Fair Work Information Statement – must be provided by employers to all new employees, and contains information about the NES, modern awards, agreement-making, the right to freedom of association, termination of employment, individual flexibility arrangements, union rights of entry, transfer of business, and the respective roles of the Fair Work Commission and the Fair Work Ombudsman.

It’s critical that all manufacturing businesses across Australia take the time to familiarise themselves with the 10 minimum conditions of employment, as businesses cannot afford to get this wrong. Employers can be heavily penalised if they contravene provisions of the NES.

A contravention may result in penalties of up to $10,800 for an individual and $54,000 for a corporation.

In the manufacturing industry it is critical to have a misconduct and discipline policy to deal with such circumstances. When looking at your reasons for the termination of an employee it may be worth consulting the Fair Work Act 2009.

In any case, remember to follow these tips:

·       First attempt to correct and/or improve the performance and behaviour of employees where appropriate

·       Provide employees with an opportunity to correct unacceptable performance or behaviour (other than in situations where summary dismissal is appropriate, for example, theft, whereby an employee's actions constitute serious misconduct)

·       Ensure that all employees are treated fairly, equally and consistently

·       Offer procedural fairness such as an opportunity to respond and have a support person present

·       Ensure that each situation is reviewed and addressed on an individual basis and in relation to the particular circumstances.

·       Seek advice from a professional before terminating

·       Document the entire process including warnings and the termination letter

·       Ensure all entitlements are paid out correctly

 

Gabriel Alkan is Principal Consultant at Specialist HR. Specialist HR is a Sydney based business that provides human resources and industrial relations services to businesses across Australia and New Zealand.

www.specialisthr.com.au

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