New target: Bosses

Under the Rudd Government, the workplace policeman is widening his beat. Employers had better get used to more scrutiny, but ANDREW DOUGLAS has pointers to stay in the good books.

By Andrew Douglas

Under the Rudd Government, the workplace policeman is widening his beat. Employers had better get used to more scrutiny, but we have pointers to stay in the good books.

You will recall under the Howard government the industrial police hung around building sites and outside union offices prosecuting the bullies – or so it seemed.

Well, the pendulum has swung. The workplace ombudsman and his merry band of inspectors are now focusing on employers that, among other things:

• Breach awards or agreements.
• Underclassify employees.
• Unfairly or unlawfully terminate employees.

Are you at risk? The answer is yes. Innocent errors can lead to prosecution and penalties.

What are your risks?

There are several areas over which employers need to be vigilant:

• Clauses that attempt to gross up entitlements like leave loading.
• Wrongly classifying an employee under an award.
• Unlawful terms in contracts under the Workplace Relations Act, award or collective agreement.
• Using the wrong award.
• Failing to pay entitlements under an award.

The answer?

To guard against any problems, you will need to pay particular attention to certain areas.

• Grossing up clauses need to be calculated carefully against the award and the standards under the act. The base rate must be equal or better than the award rate and grossed up entitlements, and even then the case law is not black and white.
• Read and understand the standards under the act and the award.
• Avoid old contracts – start afresh and think carefully what you really want. Simple compliance with the act and award is not hard, expensive or damaging to your business – your competitors have to do the same. It is a level playing field.
• Be transparent with employees to forge a relationship of trust, so if you make an error they will work with you to fix it, not complain to the Ombudsman.
• Fix problems immediately.

What the Ombudsman can do:

• Enter your premises and require the production of documents and to interview employees, managers and owners.
• The documents must be produced if a notice is given.
• You do not have to answer questions – the only power is to interview; it does not mean an inspector can compel answers.
• Prosecute you.

Remember, be honest and open with your employees and you have little to fear. It is never clever to underpay or underclassify employees. Whatever your gain underpaying or classifying, you lose in production, quality, in the trust of your employees, and damage the brand of your business. That is short term gain, and long term damage.

Andrew Douglas is the founder, principal lawyer and managing director of Douglas Workplace & Litigation Lawyers. Andrew is an experienced commercial litigation and workplace lawyer, who acts both as a solicitor and advocate.

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