It is surprising how often in our practice we come across employers who are unaware of some of the basic legal requirements that have to be met when engaging new employees.
We are talking about employers understanding the fundamentaland minimum statutory obligations that they have and must adhere to when engaging new employees. These of course are in addition to the important matters such as getting the terms of the employment contract right, incorporating appropriate restraints and having (and communicating) appropriate workplace policies covering such matters as OH & S and discrimination.
Some of these basic obligations are listed below (the list is not intended to be exhaustive).
Fair Work Information Statement
Employers must provide each new employee with a copy of the Fair Work Information Statement. This obligation applies in relation to the engagement of allemployees (including senior management). Failure to comply with this obligation is a breach of the National Employment Standards (NES) contained within the Fair Work Act 2009 (these are 10 minimum standards applying to all employees) and is punishable by a maximum penalty of up to $10,200 for employers who are sole traders, and up to $51,000 for employers that are companies. The Fair Work Information Statement can be downloaded from the Fair Work Ombudsman’s website at http://www.fairwork.gov.au/employment/fair-work-information-statement/Pages/default.aspx
NES and Modern Award access
For employees who are covered by a Modern Award, it will be necessary to advise them of where in the workplace they may access the relevant Modern Award and a copy of the NES. This is because nearly all Modern Awards make it a requirement that employees covered by them have such access. A typical example of such a Modern Award Provision (taken from the Clerks – Private Sector Award 2010) is extracted below.
5. Access to the award and the National Employment Standards
The employer must ensure that copies of this award and the NES are available to all employees to whom they apply either on a noticeboard which is conveniently located at or near the workplace or through electronic means, whichever makes them more accessible.
If employees are not advised of where the Modern Award and the NES may be accessed then they have not been made “available”. Failure to provide access will be a breach of the relevant Modern Award, which in turn is a breach of the Fair Work Act 2009. The penalties are the same as for failing to provide the Fair Work Information Statement.
Employers are often surprised at the sorts of employees that are covered by Modern Awards. For example, few people would realise that veterinarians are covered by an Award. Whilst managers and professionals are often excluded, this is not always the case, as the example of the veterinarians shows.
We often hear employers say “no, that employee is on staff” or “that employee is on salary” and think that that means that the worker is not covered by an Award. The fact is, being “on staff” or “on salary” are not relevant for these purposes. The only way to determine whether an employee is covered is to check whether the job descriptions in the likely Award cover the employee. In practice, the easiest way to do this is often to call the Fair Work Infoline: T: 1300 853 412.
Apart from the penalties that can be imposed for not providing access to the NES and the Modern Award, employers should obviously know which Modern Award(s) cover their employees to ensure that that they are meeting all the minimum legal requirements imposed on them in relation to employing their staff.
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