Managing Out of Hours Risks by Adjusting Existing Policies

Adding some basic clauses to already existing workplace contracts and policies can be more effective and less time consuming than drafting dedicated documents to help manage risks presented by workers out of hours conduct.

As far as employment contracts go, some broad clauses about workers duties and obligations may be all that is needed to sufficiently cover out of hours conduct.

Some clauses that might be useful to add include:

• Any behaviour that may negatively affect the company's reputation, business, employer's interests
• Breaching of the laws or policies using company property
• Taking on secondary employment without the consent of the company.

When it comes to work place policies it does not make sense to write a policy that is only related to out of hours conduct as it would have to be too generalised and would be hard to define exactly what employees are not supposed to do. The best approach is to examine your existing policies and determine how they might apply to out of hours conduct. Where it is appropriate you can add any relevant stipulations into those policies that make it clear what is suitable to extend to out of hours conduct.

Depending on what industry you are employed in there is a variety of policies that may be relevant to out of hours conduct.

Some amendments that could be made to existing policies to cover out of hours conduct include those relating to drug and alcohol use and private use of company property for example, vehicles and IT communications.

A lot of policies regarding company vehicles do not actually go into how people should be driving the vehicle, complying with the law and generally using them in their personal time.

Regarding computer use, policies should be simply updated to say that they apply to both work and private use.

Some other policy areas that may need to be considered include behaviour at work functions, travelling for work related business, social media and wearing work uniforms off duty.

Employees wearing their uniforms when they are not at work can pose a problem because they are easily identifiable as working within your business. There behaviour can easily fall back on you.

Discrimination and harassment policies should be updated to make it clear that they can apply to any out of hour’s interactions between employees.

These simple clauses can be extremely effective and they can also come in useful if you have to enforce policies for out of hours conduct breaches.

Age Discrimination in the Workplace

Age discrimination is when a person is treated less positively than another person in a comparable situation, because of their age.

It could be ‘direct age discrimination’ if an older applicant is not considered for a job because it is assumed that they are not as up to date with technology as a younger person.

It is also considered age discrimination when there is a policy that is the same for everyone but has an unfair effect on people of a particular age. This is called ‘indirect discrimination’.

It may be considered direct age discrimination if an employer obliges an older person to meet a physical fitness test –which younger people are more likely to succeed in – if the fitness standard is not an essential necessity of the job.

The Age Discrimination Act covers situations where you feel that, because of your age, you may have been:

• denied a promotion, transfer or other employment-related benefits
• given less favourable terms or conditions of employment
• refused employment
• harassed
• dismissed
• denied equal access to training opportunities
• selected for redundancy

The law includes all types of employers, including the Commonwealth and state governments and the private sector.

The recent Age Discrimination Survey conducted by the Australian Human Rights Commission has found that over one quarter of Australians aged over 50 years have experienced some form of age discrimination within the last 2 years.

This report should serve to encourage employers to begin taking the issue of age discrimination more seriously.

Most people understand that it is more difficult to get a job if you are older but this report highlights the fact that this is a form of discrimination and should be treated as such.

The publicity that has accompanied the results of this survey may give older workers the confidence to take action if they believe they have been discriminated against due to their age.

One of the major findings of this report was that you are most likely to be discriminated against because of your age when you are looking for paid employment.

The telephone survey of 2109 people aged over 50 years found that almost three in five or 58% of people looking for paid employment were discriminated against because of their age.

Of those who were not employed in the last two years but would have liked to have been, one in five (18%) stated that it was because their skills were not current.

Developing a Workplace Policy

A workplace policy helps you to define how you will run your organisations day to day operations and the behaviour that is acceptable for employees and management. It also states what will happen if a worker does not adhere to the policies.

Policies help to guide businesses and assure that they are complying with legislation, regulation and codes of practice. When developing a policy it is important that it is easy to comprehend - written in plain English with reasonable expectations and that everyone understands the consequences of not complying.

A good workplace policy should provide a statement of purpose and guidelines on how to achieve this purpose. Research what a good policy looks like and how other businesses have done their workplace policies to see if you can use some of their information in your workplace policies.

Here are some questions to help you to be sure that you have not left anything out of you workplace policy:

1. What is the purpose of the policy?
2. What is the range of the policy? What activities are included in it and who does it apply to?
3. Are there any related policies or procedures that exist or are being developed? 
4. What is considered acceptable behaviour under the policy? Can you include any examples?
5. What behaviour is considered unacceptable under the policy?
6. Is any behaviour relating to the policy against the law? If it is make sure to reference any related legislation and make it known that legal action could be taken against any employee who participates in this kind of behaviour.
7. What disciplinary action or performance management procedures will be enforced if an employee breaches the policy? A Disciplinary Policy is very important as it outlines what processes an employer will take in issuing a formal warning to staff members, or in terminating employment. For example, if you have a policy relating to punctuality, you may need to include a procedure outlining what to do if the employee is going to be late.
8. Who should be contacted by employees with enquiries or complaints regarding the policy?
9. Who has authorised the development of the policy?
10. Are there any circumstances in which it will not be possible to follow the policy – if so, how will you respond? 

It is essential to have the co-operation of your committee, managers and executives when making any workplace policy. If corrective action must be taken, everyone should agree on what will happen next.

Who is considered the Primary Carer for the Purpose of Parental Leave?

The primary carer of an adoptive or newborn child under 18 is eligible for 18 weeks of paid leave under the Paid Parental Leave scheme. Partners or secondary carers are eligible for a shorter amount of leave, 2 weeks for working dads and partners under the Paid Parental Leave scheme.

Defining who the primary carer is not necessarily clear-cut. The Fair Work Commission have recently made it clearer to define when an employee will be considered the primary carer.

According to the Fair Work Commission, a newborn baby’s mother must be deemed incapable of providing primary care after the child’s birth for the partner to be eligible to claim primary carer status. Looking after the mother after birth does not make a partner a primary carer.

In a recent case, two male employees claimed they took on the primary carer role after their partners delivered their baby’s via caesarean. Due to the fact that the mothers could not bend to lift the baby up or drive a car, they claimed that they were entitled to Paid Parental Leave as they were the primary carers.

DP Asbury reviewed the employees' statutory declaration (a requirement of the enterprise agreement) and medical certificates and concluded the fathers were not acting as primary carers for their babies but were acting as carers for their partners. Therefore they were not entitled to Paid Parental Leave as primary carers and the employees’ personal leave was the correct leave to use in this occurrence.

However the Fair Work Commission could not necessarily rule out certain medical procedures from being accepted as adequate proof of incapacity. DP Asbury found that the medical condition of the mother “must be such that she is unable to provide primary care for the child” for her partner to be able to make a claim for primary carer status.

A partner is able to claim primary carer status under exceptional circumstances. If the birth mother or the initial primary carer of an adopted child is unable to care for the child, a partner or another person may claim Parental Leave Pay.

The person claiming under exceptional circumstances would need to meet the eligibility criteria and presume to be caring for the child for at least a period of 26 weeks. The change of care must take place within 52 weeks of the child’s birth or adoption.

A mother returning to work full time or being incapable of caring for the baby due to a serious medical condition would allow for a partner to claim paid parental leave as they would be considered primary carer.

In this particular case, a caesarean was not considered a sufficient medical condition.

Is Unpaid Work Lawful?

Some unpaid work arrangements are considered lawful while others are not. It depends on the nature of the agreement whether an employee should be entitled to the minimum pay rate for the work they are doing as well as other minimum employment entitlements.

For an unpaid work arrangement to be lawful under the Fair Work Act 2009 it depends on if an employment relationship exists or the arrangement involves vocational placement.

If an unpaid work arrangement is not a vocational placement, the arrangement will only be legal if there is no employment relationship in place... If there is an existing employment relationship, the person is in fact actually an employee and entitled to a minimum wage, National Employment Standards and the terms of any applicable award or enterprise agreement.

When determining if a person is an employee each case must be judged on its own facts. There is no set definition of employment under the Fair Work Act. It is just a matter of figuring out if the arrangement to work involves an employment contract. This does not need to be a written contract, it may be a verbal agreement.

For an employment contract to exist it must be well defined that:

• Both parties intend to create a legally binding contract
• There is a commitment to perform work for the benefit of the business or organisation.
• The person performing work will gain something in return - this may just be experience or training.
• The person is not performing the work as a part of their own business.

When determining if an employment relationship does indeed exist it can be useful to consider the nature of the arrangement and not how the parties have chosen to describe it. These factors should be taken into consideration.

• Was the purpose of the arrangement to provide a learning experience or was it to get the person to assist with the everyday operation of the business? If the arrangement involves productive work instead of just training and skill development, it is more than likely an employment relationship exists.
• How long is the arrangement for? The longer the period of arrangement, the higher the chances of there being an employment relationship present. However short engagements can also be considered as having an employment relationship existing.
• How important is the arrangement to the business? The more essential the work is to the running of the business, the more likely it is that it’s an existing employment relationship.
• Who is benefitting from the relationship? The person who benefits the most in a genuine unpaid work arrangement should be the person undertaking the role.

A vocational placement is a formal work experience arrangement that is part of an education or training course. Vocational placement that meet the definition under the Fair Work Act are lawfully unpaid.

Tips for Hiring

Choosing the right people for your organisation is vital to building and developing a successful business. People provide the framework for any thriving company.

Here are some tips for hiring the best candidates for your business and keeping the employees you already have.

• Be present and engaged in the hiring process, be there during candidate interviews and communicate with HR. 
• Build a culture within your organisation. Have a clear vision of what you want the culture of your organisation to be like and this will help you to build a team to fit it. Once you have decided on your company’s values and culture make it known to all potential applicants. Include these values on your website.
• Utilise social media. Recruiting via social media is more popular than ever. Include links on Twitter, LinkedIn and Facebook to your career page on your website.
• Recruit Continuously. Always be on the lookout for potential employees, even when there are no openings. You can never tell when an employee might leave.
• Know what you’re looking for in an employee. Have an understanding of the skills and traits that will make an applicant successful in the role and write a job description accordingly.
• Interview a broad range of candidates. You may not know the right person for the job until they are sitting in front of you.
• Develop your staff to their full potential. Provide training and opportunities for advancement. Train all new employees in job requirements on hiring instead of a few months down the track to prevent them from forming bad habits.
• Conduct exit interviews. A good way to ensure that you keep your current talent is to find out the reasons why another employee is leaving. An employee who is leaving is often more forthcoming than one who is currently still employed with you.
• Ask the right questions. The job interview is a major factor in hiring the right employee. The questions asked during the interview are critical in defining whether or not the candidate is right for the job.
• Don't Settle. It’s tempting to settle for the best of the bunch, but if the best pick of all your candidates still doesn’t feel right keep looking.
• Offer a three month trial period .It’s expensive hiring new staff but it’s even more so to replace them. Having someone work for you on a short contract is a good way to see if they are the right fit for your organisation.

Improving Morale

Having good employee morale in your business means that your staff are happy to come to work every day and can give you many benefits, including better production, reduced absenteeism and improved teamwork and engagement.

There are many different factors that can contribute to low staff morale within a workplace – job security, limited promotion opportunities, unfair compensation and high employee turnover.

An expensive sign that you have low morale in your work environment is high staff turnover and increased absenteeism – two things that can cost your business a lot of money.

If you are noticing this in your business, here are a few tips to increase morale:

• Good management. Managers can make or break a workplace environment. A good manager makes an effort to understand employee’s abilities and tries to provide challenges to utilise their full capacity. They give praise where praise is due and allow employees the opportunity to grow.
• Make your employees feel special. Celebrate birthdays, weddings, births etc. with a cake or card. Find a reason to celebrate the little things in your workplace. It helps to make staff feel at home and comfortable in their place of work and fosters a friendly team environment.
• Listen to the ideas of your employees. Keep your employees informed and up to date with what is happening with the company and listen to their input. This helps to make employees feel as though they are a part of something bigger.
• Reward good work. Be sure to acknowledge when a job has been done well. People want to feel valued.
• Make the workplace feel comfortable. Nobody wants to be in a completely cold, sterile and uncomfortable environment. Replace the harsh fluorescent lighting if need be and keep the office at a comfortable temperature.
• Encourage regular work breaks. Tell your staff to take a walk around the block or go get a coffee. People are much more productive if they take regular breaks to refresh their minds.
• Have some fun. Engage in some team building exercises. Encourage your staff to get to know one another.  Talk about hobbies or something other than work
• Let your employees vent. Get it out of their systems. Meet with your employees individually or in small groups and allow them to share some of their frustrations and challenges they’re facing on the job. The process can help improve morale almost instantly.
• Promote from within your company.
  When your employees see that there are opportunities to advance their careers within the company it makes them strive to do better. Keep on the lookout for employees with skills that could benefit your business and develop them .A small investment in training can go a long way.