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The Experts

The shocking surprises that confront new employers

David Bates
Friday, December 28, 2018

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Imagine for a moment you’re one of those migrants Australians appear to overwhelmingly endorse: the entrepreneur who comes to our country looking to start a business, employ people, and pay their fair share in tax.

If you’re a savvy migrant, you’d seek out expert advice before you decide to invest in your business and open-up shop. You might, for example, engage a conveyancer or commercial property expert to look over your contract for sale or lease before you sign on the dotted line.

You might instruct an accountant to register your business for GST and take care of your financial reporting obligations. And you might speak to a broker about insuring your business and your livelihood.

But if you’re a really savvy migrant, you’d also speak to an employment law expert before you place your ‘position vacant’ ad online. ‘Why would you need to do that?’, you might (quite reasonably) ask. I mean, how hard can it possibly be? Perhaps you were an employer in another English-speaking country (think Canada, the UK, or even New Zealand), and therefore think hiring and firing is relatively straight forward.

Think again.

First, there’s Australia’s unbelievably complex system of 122 Modern Awards. Which one applies to your employees? Is there more than one which could apply? What’s all this about ‘classifying’ employees? And what’s the difference between ‘ordinary hours’, ‘overtime’, ‘reasonable additional hours’, ‘penalty rates’ (have I done something wrong?!), and ‘loadings’?

Second, there’s the ten National Employment Standards (NES). Clear about the difference between Emergency Management Activity Leave and Jury Service Leave? Sure you’re not asking your employees to work ‘unreasonable hours’? Confident about when you can ask for a medical certificate or turn down a request for ‘flexible working arrangements’?

Third, there’s all the different claims your new employees can bring against you if you eventually decide they’re not up to the job. Running a small business? They’ll be protected from ‘unfair dismissal’ after 12 months. And regardless of how many employees you have, everyone you hire is eligible to bring an ‘adverse action’, ‘discrimination’ or ‘bullying’ claim from the moment they start (and in some cases, even before that!).

Having read the above, perhaps you’ve decided the smart thing to do is just engage people as independent contractors instead. Sadly, that could end in legal tragedy because you’ll likely be in breach of the ‘sham contracting’ provisions contained in the Fair Work Act.

Maybe now you’re reconsidering opening that business at all!

The Australian Council of Trade Unions is right about one thing: we do need to ‘change the rules’. But the change we need is the simplification and streamlining of our often-inflexible and expensive workplace relations system so that it works for both employers and employees.

Right now, those who most need protecting often feel abandoned or overwhelmed, those who want to open a business don’t, and those who are trying to do the right thing find it almost impossible to comply with all their obligations.

Surely we can do better than this?


Published: Friday, December 28, 2018

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