Below are some frequently asked questions that I have been asked over and over during my career. Often managers or business owners are too embarrassed or are afraid to ask these questions.
They don’t want to be caught out doing the wrong thing or they are just not sure if they are taking the right path.
You can rest assured that no one is judging you here. Read through these FAQ’s at your leisure. Hopefully they help you out with your concern or point you in the right direction to get the right outcome.
The intention of these FAQs is not to be a comprehensive guide to all things related to people management. They are simply meant to provide some guidance and give some next steps about how you can handle many of the frequent matters that arise in your day to day operations.
If you have any that you want to add or need any further assistance, drop us a line hello@thepeoplescene.com
They don’t want to be caught out doing the wrong thing or they are just not sure if they are taking the right path.
You can rest assured that no one is judging you here. Read through these FAQ’s at your leisure. Hopefully they help you out with your concern or point you in the right direction to get the right outcome.
The intention of these FAQs is not to be a comprehensive guide to all things related to people management. They are simply meant to provide some guidance and give some next steps about how you can handle many of the frequent matters that arise in your day to day operations.
If you have any that you want to add or need any further assistance, drop us a line hello@thepeoplescene.com
#Disclaimer: Before you settle in, I want to frame that while there are guidelines in place for most people matters to ensure compliance, there are other ways. I have kept most of the FAQ’s relevant to actual legislation set by the Ombudsman as that tends to be black and white. As we are dealing with people there are often more grey scenarios so there is no “one size fits all” approach. These are just my guidelines so if you have your own way of doing something then perhaps take this more as a learning exercise to get some other methods that may work into the future.
Employment Documentation
Why do I need an employment contract for employees in my business?
An employment contract or agreement is an agreement between you, the employer, and your employees. It sets out the nature of the employment (full-time, part-time, casual) and also the specific terms and conditions of the employment.
It is good practise to provide each employee with a written contract/agreement. This clearly sets out the terms and conditions for both parties and ensures clarity if a dispute arises into the future. It provides a record and ensures that information including start date, salary and entitlements, working status and any other terms and conditions are clear.
Under Australian law, regardless of whether there is an employment agreement in place, a set of minimum entitlements applies automatically to every worker. These are known as the National Employment Standards (see question 4).
Employers can’t enter into an employment agreement with an employee that offers anything below the NES.
It’s also important to know whether an industry award will cover your employees. This will outline the minimum pay for your employees as well as some of the conditions of their employment. If no award applies and you do not have an enterprise agreement, your employee will follow the agreement you both agreed on. If you have no agreement then the arrangement automatically defaults to the National Employment Standards as the minimum entitlements.
Get your terms and conditions agreed up front. You can then both focus on the job without any confusion or uncertainty.
It is good practise to provide each employee with a written contract/agreement. This clearly sets out the terms and conditions for both parties and ensures clarity if a dispute arises into the future. It provides a record and ensures that information including start date, salary and entitlements, working status and any other terms and conditions are clear.
Under Australian law, regardless of whether there is an employment agreement in place, a set of minimum entitlements applies automatically to every worker. These are known as the National Employment Standards (see question 4).
Employers can’t enter into an employment agreement with an employee that offers anything below the NES.
It’s also important to know whether an industry award will cover your employees. This will outline the minimum pay for your employees as well as some of the conditions of their employment. If no award applies and you do not have an enterprise agreement, your employee will follow the agreement you both agreed on. If you have no agreement then the arrangement automatically defaults to the National Employment Standards as the minimum entitlements.
Get your terms and conditions agreed up front. You can then both focus on the job without any confusion or uncertainty.
Why do I need Policies in my business?
Many businesses query why they need policies in addition to the employment contract. The quick answer is that the contract outlines the terms and conditions of employment and mostly contains clauses that do not change.
Policies do not form part of the employment agreement and they may change as a result of business change and growth. They are not set in stone but do set the ground rules of what the business expects of all employees.
So, why do you need them?
They set the minimum standards that you, as an employer will accept and provide information to new and existing employees about “how you do things”. They aim to ensure that your team are all on the same page and know expectations.
They also play a part in protecting your business from potential legal actions and from workers taking the mickey. If you find yourself in hot water with a disgruntled employee, you have a benchmark with which it is understood that they will be held to account.
As a final point – there is no point having the policies in place if you do not issue them to your employees and have them in the office or on the intranet in an accessible place. Make sure each employee has signed off stating they have received, they acknowledge and understand the policies and agree to adhere to them. The final step is really important.
Policies do not form part of the employment agreement and they may change as a result of business change and growth. They are not set in stone but do set the ground rules of what the business expects of all employees.
So, why do you need them?
They set the minimum standards that you, as an employer will accept and provide information to new and existing employees about “how you do things”. They aim to ensure that your team are all on the same page and know expectations.
They also play a part in protecting your business from potential legal actions and from workers taking the mickey. If you find yourself in hot water with a disgruntled employee, you have a benchmark with which it is understood that they will be held to account.
As a final point – there is no point having the policies in place if you do not issue them to your employees and have them in the office or on the intranet in an accessible place. Make sure each employee has signed off stating they have received, they acknowledge and understand the policies and agree to adhere to them. The final step is really important.
What Policies should I have in place in my company?
The below are the top 10 policies that I believe should be in place to set solid foundations. These will cover the legislated requirements and the basics:
- Workplace Health and Safety Policy
– download here - Anti-Discrimination, EEO and Bullying Policy– download here
- Code of Conduct
- Smoking, Drug and Alcohol Policy
- Leave Policy
- Grievance Policy
- Performance Counselling and Discipline Policy
- Internet and Email Policy
- Social Media Policy
- Privacy Policy
What documents do I need to keep a record of in my business to ensure I am compliant?
- Employment agreement outlining the terms and conditions underpinning the employment relationship
- Salary and tax information for all employees
- Payslips – must be provided to the employee 1 day after they have been paid
- Superannuation information
- Timesheets/record keeping of hours
- Bank details
- Personal contact details
- Medical history
- Reference checks
- Record of any Training provided or induction checklist signed off as complete
- Performance metrics or discussions about performance that have taken place
- Leave records (when leave was taken and type)
- File notes of any other matters that have been discussed in a meeting or formal manner
Can an employee request access to their own records?
Employees have a right under the Fair Work Regulation to access “employee records” that relate to them.
When dealing with personal information under the Privacy Act, there is an ability for an organisation to refuse access if it would have an ‘unreasonable impact’ on the privacy of a referee. The employer would need to do an assessment as to the impact.
When dealing with personal information under the Privacy Act, there is an ability for an organisation to refuse access if it would have an ‘unreasonable impact’ on the privacy of a referee. The employer would need to do an assessment as to the impact.
Legislation and Employment
What are the National Employment Standards (NES)?
The 10 minimum entitlements that have to be provided to all employees. Download the fact sheet here for more information but the 10 entitlements are below as an overview:
- Maximum Weekly Hours of work - 38 hours per week, plus reasonable additional hours.
- Requests for Flexible working Arrangements - certain employees can request a change to their working arrangement.
- Parental leave and related entitlements - up to 12 months unpaid leave and the right to ask for an additional 12 months unpaid leave. Also includes adoption-related leave.
- Annual Leave - four weeks paid leave per year, plus an additional week for some shift workers.
- Personal / Carer's Leave and Compassionate Leave - 10 days paid personal/carer's leave, two days unpaid carer's leave as required and two days compassionate leave as required.
- Community Service Leave - unpaid leave for voluntary emergency activities and leave for jury service, with an entitlement to be paid for up to ten days jury service.
- Long Service Leave - paid leave for employees that have been with the same company for a long time.
- Public Holidays - a paid day off on a public holiday (unpaid for casuals), except where reasonably requested to work.
- Notice of Termination and Redundancy Pay - up to five weeks notice of termination and up to 16 weeks redundancy pay, both based on length of service.
- Provision of a Fair Work Information Statement - must be provided by employers to all new employees. Get your copy HERE and hand it to all new employees.
What is the Modern Award that covers my industry?
First up, Awards (modern awards) are legal documents that outline the minimum pay rates and conditions of employment in certain industries. There are 122 industry or occupation awards that cover most people who work in Australia. To find the Award which covers your industry please search here.
You will find the conditions and pay rates within your award classification.
Awards don’t apply when a business has a registered agreement in place.
You will find the conditions and pay rates within your award classification.
Awards don’t apply when a business has a registered agreement in place.
What are the Long Service Leave entitlements for my State/Territory?
Here is a snapshot but you should always check the legislation relevant to your State/Territory.
- ACT - 6.07 weeks for 7 years continuous service
- NSW - 8.67 weeks for 10 years of continuous service
- QLD - 8.67 weeks for 10 years of continuous service
- WA - 8.67 weeks for 10 years of continuous service
- VIC - 8.67 weeks for 10 years of continuous service
- TAS - 8.67 weeks for 10 years of continuous service
- SA - 13 weeks for 10 years of continuous service
- NT - 13 weeks for 10 years of continuous service
I want to close my business down over Christmas – can I force my employees to take annual leave?
If you have a Leave Policy there should be the inclusion of a clause which permits the employer to direct an employee to take annual leave. If you have an employment agreement in place you can include a subclause under “Annual leave” permitting you, as the employer to direct an employee to take annual leave, subject to the terms of the relevant award or agreement. It is a good idea to have this type of clause in the contract if the employee is award-free.
If you have nothing written, the Fair Work Act’s requirement for a direction to take annual leave is to be “reasonable”.
If you have nothing written, the Fair Work Act’s requirement for a direction to take annual leave is to be “reasonable”.
Where can I find useful information about employing staff for free?
Check out the the useful links section on the website here.
New Starter Questions
What is a probation period and why do I need one?
A probation period is effectively the “try before you buy” part of the employment relationship. The employer is assessing the new employee’s suitability for the business and the employee is determining if this is the right role and business for them.
It is a period of time determined by the employer but generally 3 or 6 months where the employment arrangement can be severed by either party by providing 1-week notice for any reason.
A 'probationary period' is created by a written employment agreement, and therefore, if no written employment agreement exists, the employee's employment will not be subject to a probationary period.
Regardless of whether or not a new employee's employment is subject to a probationary period, under the Fair Work Act, an employer can still terminate an employee's employment for any reason within a 'minimum employment period' without unfair dismissal laws applying (see Q19).
The minimum employment period is either:
It is a period of time determined by the employer but generally 3 or 6 months where the employment arrangement can be severed by either party by providing 1-week notice for any reason.
A 'probationary period' is created by a written employment agreement, and therefore, if no written employment agreement exists, the employee's employment will not be subject to a probationary period.
Regardless of whether or not a new employee's employment is subject to a probationary period, under the Fair Work Act, an employer can still terminate an employee's employment for any reason within a 'minimum employment period' without unfair dismissal laws applying (see Q19).
The minimum employment period is either:
- for an employer that employs less than 15 employees - the period is 12 months
Do casual employees have a probationary period?
Not generally and this is because casual employees do not have a notice period.
What do I have to do if I want to terminate employment during the probation period?
You still need to show procedural fairness and be able to provide a reason for the dismissal. See Q21).
What if I am not sure and it is almost the end of probation? Can I extend the period?
You can extend the probation period if you are unsure of the suitability of the candidate. You will need to provide specific feedback to the employee on the areas where they need to bridge the gap and make sure you have a measure that you are aiming for so that it is a tangible deliverable. The extension to the probation period must be agreed to in writing and signed off by both parties.
What do I do when the probation period is over?
You should be having regular discussions with your employee during the probation period so the result should not be a shock to the employee.
You need to advise in writing if they are going to become a permanent employee (template here).
If the employee is dismissed, you should also provide written correspondence. Save this in the personnel file.
You need to advise in writing if they are going to become a permanent employee (template here).
If the employee is dismissed, you should also provide written correspondence. Save this in the personnel file.
What should I include in a new starter onboarding procedure?
Ensure a workplace induction is completed within the first couple of days of the new starter joining. Ensure they are aware of the facilities and amenities of the work place and the WHS requirements.
There is a check-list here that you can use as a base guide.
Use these as a start as there is no one size fits all. Include the attributes that make your company unique.
There is a check-list here that you can use as a base guide.
Use these as a start as there is no one size fits all. Include the attributes that make your company unique.
Employee Classifications and Requirements
What is the difference between casual and part time?
What do casual employees get?
Casual employees are entitled to:
Generally, you’ll be a part-time employee if:
- Generally, you’re a casual Employee if:
- You don’t have weekly guaranteed hours
- You usually work irregular hours, and
- You don’t receive sick leave or annual leave
What do casual employees get?
Casual employees are entitled to:
- A higher hourly pay rate that equivalent full-time or part-time employees. This is called a ‘casual loading’ and is paid because they don’t get benefits such as sick or annual leave.
- 2 days unpaid carer’s leave and 2 days unpaid compassionate leave per occasion
- Unpaid community service leave.
Generally, you’ll be a part-time employee if:
- You work less than 38 hours a week
- You have a regular pattern of hours, or
- You’re a permanent employee or on a fixed-term contract.
Can I have a casual employee work the same shifts week after week?
A true casual employee does not have regular hours or guaranteed days. They are employed on an “as needs” basis and can decline a shift if they are unavailable with no recourse.
There is a definition under the Fair Work Act of a ‘long-term casual employee’. They define this type of employment as someone who is employed on a ‘regular and systematic basis’.
If your casual employees are employed on a regular and systematic basis then note that they may have access to entitlements and protections that other casual employees do not.
This is a complex topic. For more information please contact TPS – hello@thepeoplescene.com
There is a definition under the Fair Work Act of a ‘long-term casual employee’. They define this type of employment as someone who is employed on a ‘regular and systematic basis’.
If your casual employees are employed on a regular and systematic basis then note that they may have access to entitlements and protections that other casual employees do not.
This is a complex topic. For more information please contact TPS – hello@thepeoplescene.com
Do I have to pay my casual employee’s superannuation?
The Australian Tax Office (ATO) provide advice and info on tax requirements and super guarantee contributions. Call them on 13 28 61 or visit their website.
Under the Superannuation guarantee, employers have to pay superannuation contributions of 9.5% of an employee’s ordinary time earnings when:
Under the Superannuation guarantee, employers have to pay superannuation contributions of 9.5% of an employee’s ordinary time earnings when:
- An employee is paid $450 or more before tax in a month and is:
Over 18 years of age; or
under 18 years of age and works over 30 hours per week.
Finalising the Employment Arrangement
What is a Redundancy?
Redundancy occurs when an employer either decides they no longer need an employee’s job to be done by anyone, or the employer becomes insolvent or bankrupt, and terminates their employment.
The job itself, not the employee, becomes redundant.
Redundancy can happen when the business:
The job itself, not the employee, becomes redundant.
Redundancy can happen when the business:
- introduces new technology (e.g. the job it can be done by a machine)
- slows down due to lower sales or production
- closes down
- relocates interstate or overseas
- restructures or reorganises because a merger or takeover happens.
What are the steps I need to take to make a role redundant?
This is a complex question. I cannot put it better than this response on the Workplace Info site
It is very important that compliance to the processes in the Fair Work Act are followed to ensure genuine redundancy. If you are unsure, have not performed redundancies before or want to discuss please contact us or an employment lawyer. You can then be provided guidance to work through the process in a logical manner and ensure it is performed correctly to reduce the risk of an unfair dismissal claim which could be costly to your business.
It is very important that compliance to the processes in the Fair Work Act are followed to ensure genuine redundancy. If you are unsure, have not performed redundancies before or want to discuss please contact us or an employment lawyer. You can then be provided guidance to work through the process in a logical manner and ensure it is performed correctly to reduce the risk of an unfair dismissal claim which could be costly to your business.
What notice period does an employee have to provide?
If there is an employment agreement in place and it stipulates the time period then that is what the employee is contractually obligated to provide.
If the notice period is not stipulated in writing the default time period is stipulated as per below:
For further reading refer to Notice of termination, Redundancy pay and the National Employment Standards fact sheet
If the notice period is not stipulated in writing the default time period is stipulated as per below:
- One year or less - 1 Week
- 1 to 3 years - 2 Weeks
- 3 to 5 years - 3 Weeks
- > 5 years - 4 Weeks
For further reading refer to Notice of termination, Redundancy pay and the National Employment Standards fact sheet
My new starter is not working out – can I sack them risk free in probation?
What do I have to do if I want to terminate employment during the probation period?
You still need to show procedural fairness and be able to provide a reason for the dismissal.
What if I am not sure and it is almost the end of probation? Can I extend the period?
You can extend the probation period if you are unsure of the suitability of the candidate. You will need to provide specific feedback to the employee on the areas where they need to bridge the gap and make sure you have a measure that you are aiming for so that it is a tangible deliverable. The extension to the probation period must be agreed to in writing and signed off by both parties.
You still need to show procedural fairness and be able to provide a reason for the dismissal.
What if I am not sure and it is almost the end of probation? Can I extend the period?
You can extend the probation period if you are unsure of the suitability of the candidate. You will need to provide specific feedback to the employee on the areas where they need to bridge the gap and make sure you have a measure that you are aiming for so that it is a tangible deliverable. The extension to the probation period must be agreed to in writing and signed off by both parties.
What is unfair dismissal?
Unfair dismissal is when an employee is dismissed from their job in a harsh, unjust or unreasonable manner. The Fair Work Commission (the Commission) decides on cases of unfair dismissal.
- Employees have to be employed for at least 6 months before they can apply for unfair dismissal.
- Employees working for a small business (15 employees of less) have to be employed for at least 12 months before they can apply.
- Last financial year (2016/2017), the Fair Work Commission received 33,000 claims with unfair dismissals being the majority.
Can a former employee lodge an application for unfair dismal?
An employee has 21 days from the day after dismissal to lodge an application with the Fair Work Commission.
What is abandonment of employment?
See this infographic for all you need to know about abandonment of employment