Employment law; An Employers Performance Review Part 1

August 24, 2016   |   Employment Law

Making sure that your business complies with its obligations as an employer is a job that is not only worth doing, it is worth doing right. 

Employers spend a lot of time reviewing the performance of their employees. Whether it be in an attempt to increase organisational productivity or to maintain specific working standards.

Although have you ever considered doing a performance review of yourself as an employer? There is a myriad of different legislation that either directly or indirectly impacts the relationship between employee and employer which results in a long list of often complex and obscure obligations that employers have when employing workers. Obligations which, if not adhered to can lead to significant legal penalties.

Is it time to conduct a Performance Review of your Business?

Taking on an employee in your business can be a daunting task, particularly if your business is small or you don’t have dedicated human resources staff to provide proper inductions and training. Whether you are thinking about hiring an employee for the first time or already have a workforce, it might be time to conduct a ‘performance review’ of your business to make sure that you are complying with all the applicable State and Federal laws.

Here’s a handy checklist to get the ball rolling (for employers in South Australia):

1. Volunteer, Contractor or Employee?

There are different obligations that apply to your business depending on how a worker is classified and it is important to understand the distinctions and get this right. Even if you have workers that work in your business on a ‘voluntary’ basis, you may still need to comply with minimum standards and pay rates. Likewise, if you have hired a contractor, be sure that the arrangement is a genuine contractor relationship, otherwise certain employment obligations may apply.

2. Are you complying with the National Employment Standards (NES)?

The NES are 10 minimum conditions that apply to most employment relationships and cover obligations such as maximum work hours, leave entitlements, notice of termination and flexible working arrangements.  If you are unsure whether your business is complying with the NES, first check out the NES page on the Fair Work Ombudsman website and then seek specific advice as required.

3. Is there a Modern Award or Enterprise Agreement that applies to your workforce?

Most occupations and workplaces are now covered by ‘modern awards’ that were introduced on 1 January 2010.  The Awards provide minimum standards for certain occupations and might cover employees that were previously award-free.  Alternatively, in some established businesses there may be an Enterprise Agreement that has been approved by the Fair Work Commission (previously Fair Work Australia).  If you are unsure of the Award that applies to your employees or whether your business is complying with the minimum standards, a good place to start is the ‘Industries’  page of the Fair Work Ombudsman website and select the relevant industry within which your business operates. You will most likely need to also get specific legal advice to ensure your business is compliant.

4. Have you got an Employment Contract & Policies in place?

There may be specific terms that are not covered in any Award or Enterprise Agreement that apply to each employee’s employment.  These additional terms should be set out clearly in an employment contract or letter of offer (for example, obligations in relation to confidentiality, intellectual property, remuneration package etc.) or a workplace policy document (e.g. WHS policies, social media policies etc.).  These terms must not be less favourable to the employee than the minimum standards imposed by the NES and the applicable Modern Award/ Enterprise Agreement.

5. Are you registered with ReturnToWork SA?

If you are not yet a registered employer, then you will need to register prior to engaging any employees (subject to minimum thresholds for registration requirements). You will also need to pay cover premiums and become familiar with your other employer responsibilities in providing a safe workplace. Visit the ReturnToWork SA website for more details.

As an Employer, there are many different laws and regulations that impact upon your relationship with your employees. As you are conducting your ‘Performance Review’ make a list of anything that needs further review or investigation and be sure to seek specific advice. This is one job that is not only worth doing, it is worth doing right.

Keep an eye out on the website for steps 6-10.

For further information, please contact the author.

This article is posted in Adelaide, South Australia by Tri-meridian Corporate & Commercial Law and is intended to be used as a guide only. It is not, and is not intended to be, advice on any specific matter. We do not accept responsibility for any acts or omissions resulting from reliance upon the content of this article. Before acting on the basis of any material in this article, we recommend that you consult your professional adviser.