• How to make sure you don’t discriminate against independent contractors
• 14 ways to tell the difference between a contractor and an employee

Dear Reader,

Lately in the Bulletin, I’ve been reminding you about all the changes the Fair Work Act has introduced and how to make sure you comply with them.

You know the ones I mean – Modern Awards, the National Employment Standards, Enterprise Agreements, the changes to dismissal and redundancy laws, etc…

But today I thought I’d focus on a change you may not know about – your obligation not to make “sham” independent contractor arrangements.

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How to make sure you don’t discriminate against independent contractors

You’ve no doubt heard that the Fair Work Act has introduced new legislation known as “general protections”. In a nutshell, it means that your employees are protected by law in a heap of new ways.

But you need to remember that general protections legislation doesn’t just protect your employees – it also protects your independent contractors.

Under general protections legislation, it is unlawful for you to make what is known as a “sham” independent contractor arrangement.

A “sham” independent contractor arrangement is made when you misrepresent an employment arrangement as an independent contractor arrangement. In other words, if you employ someone as an independent contractor, but they are actually an employee, you will breach general protections legislation and leave yourself open to prosecution.

So how do you tell the difference between an independent contractor and an employee?

Telling the difference can be a difficult task, but there are a number of things that can help you distinguish between them.

Charles’ article below has some great tips on how to tell the difference between an independent contractor and an employee.

You can also check out the General Protections chapter in your Employment Law Practical Handbook for more information on how to make sure you don’t enter into any “sham” independent contractor arrangements.

Not yet a subscriber to the handbook? Click here for more information.

Until next time…

Claire Berry
Workplace Bulletin

P.S Do you have any questions, comments or suggestions about the Workplace Bulletin? If so, I’d love to hear them! Send me an email at claire@workplacehandbook.com.au

And now over to our editor-in-chief Charles Power.

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14 ways to tell the difference between a contractor and an employee
By Charles Power
Editor-in-Chief, Employment Law Practical Handbook

Telling the difference between an independent contractor and an employee can be a difficult task, but using the following checklists will help you to distinguish between the two.

Someone is more likely to be regarded as an employee and not an independent contractor if:

• you control where, when and how they work;
• they personally perform the work and do not sub-contract out their duties to anyone else;
• they are paid a regular salary or wage;
• you provide them with equipment and/or a uniform;
• you deduct tax from their payments
• they are given paid leave; or
• you engage them on an ongoing basis, rather than to perform a particular job.

On the other hand, someone is more likely to be regarded as an independent contractor and not an employee if:

• they do not work under supervision;
• they regularly provide services to a number of different employers;
• they are not given paid leave;
• you do not deduct any tax from their payments;
• you only paid them for the work they complete;
• they can sub-contract out their duties without seeking your permission; or
• they provide their own equipment.

If you are still unsure about whether someone you employ is an employee or an independent contractor, stay tuned for next week’s Bulletin. I’ll give you two questions you can ask yourself to be sure.

Regards,

Charles Power
Editor-in-Chief
Employment Law Practical Handbook

Recently, there have been a number of changes to Migration laws which means – yep, you guessed it! – you now have a number of new obligations.

Check out Charles’ article below to find out what you must now prove to the DIAC before they will approve your application to become a 457 visa sponsor.

For more information on your new obligations under Migration laws, check out your newly updated Migration chapter, due out in your next Employment Law Practical Handbook update.

If you’re not yet a subscriber to the Employment Law Practical Handbook, click here to find out exactly how it can benefit your business.

How to make sure you understand the Fair Work Act

You know those free breakfast seminars I’ve been telling you about lately?

Well they begin this Thursday – so you’ll need to get in quick!

Charles Power, Editor-in-Chief of the Employment Law Practical Handbook is leading them. You can be sure you’ll come away with a heap of practical methods for ensuring your business is compliant with the Fair Work Act.

Click here for more information and to book your seat.

Until next time…

Claire Berry
Workplace Bulletin

1. Your business is actively and lawfully operating in Australia or lawfully operating overseas (i.e. you will need to provide proof of registration and business activities).
2. You are complying with training benchmarks such as spending a certain amount of money on training (if your business is operating in Australia).
3. Your business has a strong commitment to employing local labour and has non-discriminatory employment practices.
4. Your business is a legally compliant, actively operating business with a good record, and that you will comply with immigration laws.
5. Your business is not already approved as a sponsor.
6. Your business, or an “associated entity”, will be the direct employer of the visa holder (unless the occupation is otherwise exempt from this requirement).

Migration laws have changed significantly and there are even more changes on the way!

For more information on your new requirements, keep an eye out for your next Employment Law Practical Handbook update. It’s due in your mailbox shortly and contains a brand new version of the Migration chapter.

Not yet a subscriber to the handbook? Click here for more information.

Regards,

Charles Power
Editor-in-Chief
Employment Law Practical Handbook

In Tuesday’s Bulletin, I reminded you about all the things you need to be up-to-speed on when it comes to enterprise agreements.

There were quite a few!

But there’s no need to worry – like I said on Tuesday, all the in’s and out’s of enterprise agreements are explained in the updated version of chapter E2 Enterprise Agreements, coming out in your next Employment Law Practical Handbook update.

Not yet a subscriber? Click here for more information.

But if you were considering making an enterprise agreement to tailor a modern award to suit the needs of your business, you may not have to…

There are alternatives to making an enterprise agreement!

Don’t forget – there are a number of other options available to you when it comes to making a modern award more flexible for your business.

Instead of making an enterprise agreement, you can:

• use annualised salary provisions;
• insert set-off provisions into your employment contracts;
• make award flexibility agreements; or
• give guarantees of earnings.

Check out Charles’ article below for more information on these 4 ways of making modern awards suit the needs of your business.

Until next time…

Claire Berry
Workplace Bulletin

But you need to consider that this might not be the best option to tailor award conditions to suit your workplace. You do have other options available to you.

They are:

1. Using annualised salary provisions. Some modern awards allow you to package out award conditions in the salary you pay employees. For example, clause 14.1 of the Banking, Finance and Insurance Award entitles you to pay an employee an annual salary which incorporates award obligations like minimum weekly wages, allowances, overtime and penalty rates and annual leave loading. The employee’s agreement is not required; you simply advise the employee in writing of what their annual salary will be and which provisions of the award will be satisfied by the annual salary.
2. Inserting set-off provisions in employment contracts. You can include provisions in employment contracts that allow you to set-off over-award payments against award entitlements. However, you will need the employee’s agreement to this provision and you will also need to keep proper records so you can prove that the award obligations are being satisfied.
3. Making award flexibility agreements. Modern awards permit written agreements to be made with existing employees to allow over-award payments to replace award obligations to pay overtime rates, penalty rates, allowances and leave loading. A key disadvantage is that entering into an award flexibility agreement cannot be a condition of employment for new employees. Also, employees can terminate award flexibility agreements by giving 4 weeks’ notice.
4. Giving guarantees of earnings. Employees and employers can agree to contract out of awards if you promise to pay them more than $108,300 per annum for a specified period. These undertakings must be in writing and signed on behalf of the employer. Employees must agree to accept the undertaking, which is usually designated by their signature (although signing is not mandatory).

Regards,

Charles Power
Editor-in-Chief
Employment Law Practical Handbook

When it comes to enterprise agreements, there are so many things you need to be up to speed on.

For starters, you need to choose the right type of enterprise agreement… then you have to decide what you want from it… negotiate with your employees and their bargaining representatives in good faith… choose the content of the agreement… not to mention get it properly approved by Fair Work Australia.

And that’s not even the half of it…

For example, did you know you could breach your good faith bargaining requirements if you fail to consult with a union during the bargaining process?

If a union is your employee’s bargaining representative, you MUST recognise them while enterprise bargaining.

Check out Charles’ article below to find out why.

For even more information on enterprise agreements and the bargaining process, keep an eye out for your next Employment Law Practical Handbook update, due in your mailbox shortly.

It contains an updated version of chapter E2 Enterprise Agreements which will show you exactly how to make, vary and terminate an enterprise agreement in 2010.

Not yet a subscriber to the handbook? Click here for more information.

How to make sure you stay on top of the Fair Work Act

Don’t forget about Charles’ breakfast seminars I told you about last week…

They will cover the implications of the Fair Work Act changes and offer a heap of practical methods for ensuring your business is compliant with the Fair Work Act.

So make sure you don’t miss out! Click here to book your place at these great free seminars.

And remember, by attending, you are guaranteed to come away with information you can start putting into practice in your workplace straight away.

Until next time…

Claire Berry
Workplace Bulletin

And remember, unions can also be bargaining representatives if they are eligible to cover the employee represented. And not only that – if employees who are union members fail to actively appoint someone other than their union to be their bargaining representative, then the union will become the bargaining representative by default.

If you know that the union is a bargaining representative for some or all of the employees who will be covered by the agreement, you cannot fail to recognise the union. If you do so, you may breach your good faith bargaining requirements under the Fair Work Act.

Take this recent case for example:

In Australian Municipal, Administrative, Clerical and Services Union v Queensland Tertiary Admissions Centre Ltd [2009] the Queensland Tertiary Admissions Centre Ltd was found to have breached their good faith bargaining requirements by largely excluding the union (as the employees’ bargaining representative) from the bargaining process. They had only one brief meeting with them and were found instead to have bargained directly with their employees.

However, this doesn’t mean you can’t talk to your employees about the agreement directly. So long as you are willing to discuss the agreement with the union, you are free to hold meetings with your staff about the agreement without the need for the union to be present.

For more information on enterprise agreements and the bargaining process, check out the brand new version of chapter E2 Enterprise Agreements, due out in your next Employment Law Practical Handbook update.

Regards,

Charles Power
Editor-in-Chief
Employment Law Practical Handbook

Bullying in the workplace can be a tricky issue.

Why? Because sometimes, it can be hard to tell when bullying is occurring. Someone in your workplace may even be breaking the law without you even knowing it.

But it’s imperative that you implement sound bullying and harassment policies in your workplace.

If you don’t, you could be slapped with a HUGE fine, not to mention your reputation being damaged and staff morale plummeting.

Take this recent case for example. Last week, a Sydney bar worker was awarded more than $500,000 in damages after it was found that her manager had subjected her to sustained bullying over a two year period.

And who had to foot the bill for the fine? The company – not the manager who was responsible for the bullying.

Remember, making the effort to prevent workplace bullying is more than just good business practice – it’s the law.

Check out Charles’ article below for some great tips on how to prevent bullying from occurring in your workplace.

Or, for more detailed information and even more practical tips and advice on dealing with bullying, check out the Discrimination chapter in your Employment Law Practical Handbook.

Not yet a subscriber to the handbook? Click here for more information.

Until next time…

Claire

There are also other steps you should take to prevent bullying, discrimination and harassment occurring in your workplace:

1. Make sure you encourage respectful and courteous behaviour in the workplace. One way of doing this is showing your employees that you do not support bullying.
2. Put in place a thorough workplace bullying policy. Ensure that everyone in your workplace is given a copy of your bullying policy, and that you remind people about it often. (For more information on what should be included in a workplace bullying policy, please refer to last Tuesday’s Bulletin here.)
3. Make sure you understand what constitutes bullying – and make sure everyone else in your workplace does too. Your employees need to know exactly what is acceptable behaviour and what is not.
4. Respond as soon as possible to any evidence of inappropriate bullying behaviour.
5. Monitor your workplace for any bullying constantly. You can’t just assume that bullying is not occurring in your workplace. You need to keep an eye out for warning signs, like employees taking excess amounts of leave or becoming withdrawn or looking stressed.
6. Train your supervisors and managers about your workplace bullying policy, and encourage them to address any problem behaviour as soon as possible, regardless of whether or not a formal complaint has been filed.

Regards,

Charles Power

Editor-in-Chief
Employment Law Practical Handbook

How are you coping with the new Fair Work Act?

If you’re anything like me, getting the hang of all the changes it has introduced is probably taking a while.

And who can blame you? There are just so many things you need to get your head around.

But there is a way you can make sure you are completely informed about the Fair Work Act and how it affects your business.

How to stay up-to-date with the Fair Work Act

Editor-in chief of the Employment Law Practical Handbook, Charles Power, is leading a series of free breakfast seminars on the Fair Work Act this March.

These seminars will cover:

• the implications of the Fair Work Act changes;
• methods for ensuring your business is compliant with the Fair Work Act;
• the impact of the Fair Work Act on the Media, Advertising and Entertainment industry;
• how the Building and Construction industry has been affected by the Fair Work Act;
• the significant changes the Fair Work Act has made to collective bargaining and industrial action;
• and much more.

By attending, you are guaranteed to come away with information you can start putting into practice in your workplace straight away!

To find out more about how these free seminars can benefit you and your business, click here.

Until next time…

Claire