Three Essential tips to a succesful recruitment with Georgie Chapman

Transcript

Today, I’m delighted to talk with Georgie Chapman, who is a partner with HR Legal, a firm that specialises in all matters employment law on behalf of employers. Georgie’s been a partner for many years with substantial experience acting for a wide range of employers on matters including discrimination, industrial relations, occupational health and safety, and employee termination.

Related issues, whether they’re resolved internally or they escalate to litigation. She’s seen it all. I really value the working relationship we’ve had over a decade and recommend her and HR Legal wholeheartedly to my valued clients.

Welcome to the #CriticalFewActions™ to improve your business podcast. I’m John Downes and I’m here to help you cut through the overwhelm and prioritize what matters most to improve your business. Let’s get started and discover the #CriticalFewActions™ that have the biggest impact.

Georgie, welcome. Thanks for joining me. Thanks for having me. John’s great to be here.

Excellent Georgie. Our topic for today is starting the HR lifecycle, getting off on the right foot. So to get us started, let’s just say I’m looking for a new employee. What do I need to be aware of in posting a job advertisement?

I Think what’s really important when you’re posting a job advertisement is that you’re articulating what the key requirements are in a candidate and these ideally need to be objective criterion, so skills, experience that you’re seeking and that are not touching on any protected matters under anti-discrimination legislation.

So we have protections at both state and federal level around anti discrimination in employment. And these protections also apply in respect to recruitment, so job applicants. So there are a whole host of protected attributes. They include things such as gender, religion, disability, age, race, and the like.

And an employer or a prospective employer should not be making decisions about a candidate’s Suitability for a role based on a protected attribute. So the only rider on that, is if you are seeking to redress inequality by seeking to target particular applicants in a particular group.

And so an example of that might be if you have an industry where typically it’s been a male dominated industry and you want to attract females. to that particular industry or role, then you could actually target females. So in effect, discriminating against males and that’s what’s known as a special measure.

So it’s seeking to redress an imbalance and directed at achieving substantive equality so that you’re getting gender parity in a particular role. So in those cases, that’s okay, but it’s worth seeking advice at making sure that the wording in the job application meets the requirements of the anti discrimination legislation.

Some other things to include, if there are going to be particular licenses or qualifications required for a role or other sorts of inherent requirements. Requirements that will be preconditions to employment. It’s worth flagging these in the job advertisement. So it might be rather topical at the moment that, you might require someone to be vaccinated against COVID 19 unless they have a valid medical exemption.

It might be that they need to have particular licenses in order to fulfill the inherent requirements of the role. So worth putting that. So you’re actually managing expectations and you’re setting the scene for, the recruitment process and that will be a requirement should that person be a successful applicant.

Okay. So if I’ve got a French restaurant and I’m really looking for people who are native French speakers, I can specify that in the job, but it would be unwise to specify that they’d be French speaking and female specifically. However, if I was running a an organization looking to have diversity across my board, and it was a male dominated book board, I might then be able to actually would I be able to mention that I’d prefer to have Female board members apply.

Yeah, what often you see is it might be female applicants strongly encouraged to apply those sorts of words. And again, French speaking would be highly valued, those sorts of things. And that could be, a way of managing a potential discrimination risk, but also, indicating what desired attributes would be for a particular role and particularly where it’s directed at achieving substantive equality, then you’re less likely to fall foul of the anti discrimination legislation.

Okay. Is there anything else that I can’t put into a job advertisement? Do I need to worry about misstatement about, this is a fabulous place to work, we’ve got a fabulously inclusive culture when I’m already registered on the anti bullying websites of government, et cetera, or?

Look, I think it’s fairly unlikely that any sort of statements about, we really want workplace culture and things like that are going to lead to substantive legal risk. There can be in theory risks around a breach of the Australian consumer law. Also making risk. misrepresentations in the recruitment phase.

But they’d have to be pretty highly stated and it’s quite difficult for an individual to achieve the high bar to succeeding in that sort of claim. So there’d need to be a whole host of conduct that misrepresents what the employment relationship will look like. They then need to act in reliance on that and suffer damage.

So it’s quite a high bar. But I think still we want to be on a practical level realistic about what we put into the job advertisement, because if you want that person to be attracted, but also then engaged and retained, we don’t want to be completely misrepresenting the sort of workplace culture or the environment that they’re seeking to apply for.

So realistically, you wouldn’t say anything in a job ad that you wouldn’t normally say in any other advertisement or any other public statement about your business to consumers.

Yeah,

absolutely.

Perfect. So now that we’ve got our job ad up and we’ve been had a deluge of the applicants. When I interview,

what do I need to be aware of saying and not saying I’m always worried I’m going to stick my foot in it. And you know that I can do that Georgie.

Look, I think it’s really important again to be aware of what some of the protections are around anti discrimination in the recruitment phase. And this can apply even in small talk in an interview.

So sometimes people are seeking to break the ice and they’re just getting to know one another. In an interview and the interviewer asked questions such as do you have children and they might be genuinely interested about that person, but if that person is then not successful, they might draw the line between the two and think I’ve been discriminated against because of my parental responsibilities.

So that’s not to say you can’t ask icebreaker questions, but you’ve just got to bear in mind what might be appropriate. And I think it’s really important that again, the questions are really directed at ascertaining that person’s suitability for the role. So what are their skills? What are their what is their experience in a particular field?

So really directed at, can that person fulfill the requirements of the role? If there are concerns about for instance, someone has parental responsibilities and this. job requires a lot of travel, then the question should be posed in respect to the requirement of the role. This role will require substantial interstate travel, which, we’re hoping in the coming months will become more and more available.

And that, is there any reason why you think you wouldn’t be able to require, comply with that or, achieve that and so it’s not actually focusing on do you have children because you wouldn’t be able to do that, but it’s about the requirement of the role and then asking them can they actually comply with that.

I think the other thing to bear in mind is if there are requirements of the role that might pose. Challenges for someone with a protected attribute. And it might be that there are physical requirements of the role. And if someone had a preexisting injury or condition that might prevent them from fulfilling that requirement safely.

It’s fine to ask questions directed at that provided it’s done in an appropriate way. And so I think this really underscores the importance that people conducting the interviews are trained. So if it’s going to be. The managers, the frontline managers and the like, or whether it’s HR personnel, they understand how to pose these sorts of questions in order to actually collect the information I need to be collecting.

And so asking questions such as, have you ever made a work cover claim? That’s going to potentially lead you into hot water because whether they’ve made a work cover claim or not actually may have no bearing on whether that I can fulfill the inheritance. Requirements of the role. And if it’s going to be the case that, you want to check their physical, psychological safety, all those sorts of things you can look at putting together pre employment questionnaires that are really directed at understanding, can they fulfill the inherent requirements of the role?

And one that

could that could include things like working with children’s permits or having a forklift operator’s license. But if we took aside the forklift operator’s license, would I. Would it be reasonable for me to ask if the person has a string of driving convictions when I’m trying to figure out if they’ll be safe in a warehouse with a forklift?

Look, you can certainly make things such as police checks part of the process if they have a valid forklift. Lift ticket that they should be able to you should be able to employ them safely. You can certainly ask if you have ever had any incidents on site while operating a forklift, those sorts of things, but you want to make it really connect

job specific.

And it’s quite common for police checks to be part of the recruitment process. Again, that’s absolutely fine. As long as it’s You’re not making decisions based on, irrelevant spent convictions, which, in certain territories, including in Victoria will become a protected attribute at the end of this year.

So it’s just worth bearing that in mind. But certainly that’s completely fine to have as part of your recruitment process, as long as it’s really directed at ascertaining, can that person fulfill the requirements of the role objectively.

And with regard to that in your professional experience, what are the sorts of gotchas that people have presented to you as when they’ve fallen foul of this?

What are the sorts of examples where they’ve inadvertently or quite consciously asked something that was just a, just inappropriate? In this context,

I think a really common one is around childbearing. Do you plan to have children? And that might even be, which, I think these days is a less socially acceptable question, unless you know someone really well.

But that can definitely put people into hot water. And I think it’s otherwise, anything that’s really contentious. Asking about views on vaccination could be, one that could, make you expose you to legal risk. And I think if it’s a, an inherent requirement of the role as it is in, a number of occupations at the moment, it’s fine to ask, We need to see evidence of vaccination status in order to continue with the process, but asking about particular views or, which political party do you support these sorts of things even if it, and it often isn’t in the, Really substantive part of the interview.

It’s in those sort of getting to know you questions or icebreaker back and forth, and the person conducting the interview probably isn’t thinking twice about it and they won’t necessarily be conscious. bias or discriminatory intent, but the person who’s being asked the questions will remember it.

And then if they’re not successful, and it might well be for an objective reason that they were better candidates or what have you, that’s when they might connect the dots and make the allegation that they’ve been discriminated against. So I think it’s just being very intentional about the sorts of questions that you ask.

And again, making sure the individuals conducting the interviews understand the parameters and how to pose the appropriate questions.

Yeah, when I speak to my clients when they’re approaching an interviewing situation I also like to remind them that actually the interview is two way.

So it’s not just them actually interviewing their potential employees, but they’re actually being interviewed as well as an employer. And so therefore they also need to be performing on their best behavior. I also think that it’s really important obviously males shouldn’t be actually commenting on female interviewees or male interviewees for that matter on how well dressed they are or how nice they look or, blah, blah, blah.

Yeah, it’s a really valid point and I think You know, the community expectations of what are, what is appropriate in, even small talk have changed and we’ve, we do have protections around appropriate behavior in the workplace and certainly protections against sexual harassment. And I think it can really set people off on the wrong foot if there are inappropriate questions being asked or comments being made and, even comments on something that someone is wearing can certainly be misconstrued. So when in doubt, leave it out is really the advice. And, I recall when I was interviewed for articles many years ago at a number of different firms that one of the ones I was interviewed at One of my friends was also interviewed and was kissed on the cheek by the managing partner who interviewed her.

And she didn’t quite understand why that had happened. But it, it’s these sorts of things. It’s not going to set. The organization off on the right foot in the eyes of the applicant could also lead them astray in terms of legal risks. So there’s all sorts of things that even if it’s not going to result in legal action, as you say, the interviewee is actually considering the suitability of the organization as well.

So you do want to be presenting a professional front. And that’s not to say we’re robots in interviews. We do want people to be natural in the interview process, but also consider what, how do we need to position ourselves to, encourage this person to want to work with us.

Yeah. And with that, Georgie as we become more,

sophisticated in how diversity aware we are, how do we address the issue of personal pronouns?

It’s a really good question. And I think it’s one that, 10 years ago many people weren’t even aware of or thinking about. And I think it is one to bear in mind that in order to address that there needs to be education

of the workforce first and the people conducting these sorts of processes. So they understand why is this important and how they can, address it in interview. And I think a really simple way of doing it. And I’m by no means an expert on this, but is simply introducing themselves and saying, my name is Georgie.

My pronouns are she, her, it’s lovely to meet you. And then that person, if they want to, can also respond with their pronouns. But if they don’t want to, that’s fine as well. And so it just sets the scene that this is a safe space if they do want to let me know their pronouns are particular, then they can do and I think it really sets up the relationship from the beginning. If that person is subsequently employed, they can feel safe, that they’ll be able to identify their pronouns and that won’t be something that is misunderstood or disrespected and the like. So I think it is. actually a straightforward and simple thing, but it can be very powerful.

And I guess it’s

Not a declaration about yourself, but actually a declaration of safety.

Absolutely. And I think provided that the broader workforce If that person just understands why it’s important, then it will be continuing that safe space. So if you’ve got a couple of people who are conducting interviews, so we’re starting things off really well, but then that person’s employed and it’s not continuing, then that’s obviously going to have issues as well from a cultural perspective. Any other howlers that come to mind from interviews?

Look, I don’t think so. I think as long as people are behaving in an appropriate way, being respectful, being intentional about the questions they ask, keeping appropriate physical distance, all those sorts of things in interview, it should be a straightforward process.

I’d always encourage those conducting the interview to take good notes. And whether you retain those notes long term, it might be that you don’t need them. But if there were any concerns that you thought, oh, there might be, a subsequent inquiry, if that person’s not successful, you might want to retain those notes just in case there are any legal issues down the track, but hopefully all being well, it’ll be a straightforward process.

That’s actually a good point. So should, or could the interview be recorded?

Look, is that

appropriate?

Yeah, I don’t think it needs to be recorded. I think if you’re doing it virtually or even in person, I think saying that you’re recording it can send the wrong message from the outset, perhaps.

That that you, the person who’s conducting the interview, perhaps, isn’t confident about making the call at interview as to whether that person’s suitable. It can make people feel a bit uncomfortable being recorded. And, even if They’re feeling confident about their suitability for the role.

It can put them off on the wrong foot. So I don’t think it needs to be recorded. I think taking notes is absolutely sufficient. And again, whether you’re retaining those notes, you do need to be cognizant that if you’re Collecting personal information of an applicant that’s not where they’re not an employee.

It’s not covered by the employee records exemption under the Privacy Act. So if you are covered by the Privacy Act you do need to make sure you’ve got appropriate protocols in place for handling that information. And if that person’s not going to be employed and they haven’t given consent to retaining their information to be part of the talent pool or what have you, then actually destroying that information in due course so that you’re not retaining someone’s personal information indefinitely.

So if you’re interviewing someone and taking notes and they’re unsuccessful then after the fact that they’ve been notified, then you should destroy your notes. Would that be right or should we wait a reasonable time just in case there is a claim?

Yeah, look, I would keep them on file, maximum a year afterwards.

It might be that you feel that it was very clear that person wasn’t suitable for the role because they hadn’t had the experience. Had a particular qualification or whatever it might be. And so it’s straightforward. And you might destroy at that point in time or an earlier point in time, but particularly where you are concerned, there might be some sort of discriminatory attribute at play.

You might get rid of it a little bit further down the track.

Yeah. How do I handle whether they’re actually suitable for the work that I have for them? From a capacity perspective, because I’m not sure as to how do I, if I’ve got somebody who’s going to be working in a warehouse or if I’ve got somebody who’s going to be working in the office how do I handle their capacity or their suitability?

Yeah, really good question. So I think as part of the pre employment process and potentially prior to interview having someone you’re considering interviewing completing a pre employment questionnaire that asks questions that are directed at ascertaining their capacity for work. So asking whether they have any pre existing injuries or conditions that may prevent them from fulfilling the inherent requirements of the role and what that really requires.

And so that you’re providing them with a summary of the inherent requirements. So when we’re talking about inherent requirements, it’s the key physical, cognitive and psychosocial requirements of a role. And traditionally, these sorts of processes were very much directed at the physical requirements and you’d see that tick and flick, which was, can you lift X amount of kilos.

Do you have a heart condition diabetes and potentially asking questions that weren’t relevant. To an officer or whatever it might be. So asking, informing them, these are the inherent requirements. Are there any pre existing injuries or conditions that would prevent you from fulfilling them that may be exacerbated if you’re required to fulfill them, or that would give rise to any risk to your health and safety?

And potentially also asking, if yes to any of those, are there reasonable adjustments that we could make? To enable you to fulfill the requirements safely, because it’s also a positive obligation on employers to make reasonable adjustments for someone with a disability to enable them to fulfill the inherent requirements.

But

I guess that’s empowering for the applicant as well.

Yeah, absolutely. And I think it’s really setting the scene that we take safety really seriously. So we want to ask these questions to make sure that if there is a condition, it’s not necessarily a barrier to employment, but we want to make sure you’re safe at work.

And then also, if that’s been a barrier. That questionnaire has been provided to the applicant. Then it may be the basis of a conversation at interview. So not the very beginning of the interview, but as things progress, saying you’ve made this disclosure and then perhaps asking some questions around this.

And again, this needs to be really carefully managed. So the questions asked should be posed at ascertaining What practical barriers has that created for that person working? So if it was a really physical role, someone working in a warehouse I say, you’ve disclosed that you have a preexisting back injury.

Is that something that’s a continuing issue for you? Has that prevented you from being able to work? Effectively in the past, how is that played out in a working environment? And if they give some indications that, there’s niggles here and there, but they otherwise think they’re managing it well, and they’re a really good candidate, it might be that you require them to undergo a functional assessment.

And what that would involve is actually having an occupational therapist, for an example assessing their capacity, ideally in the working environment, so not just in an office, but actually seeing what it would look like if they were working in the actual working environment so that they can make an assessment as to whether they can fulfill the inherent requirements safely or whether there are any reasonable adjustments that could be made.

And again, this Conversation is all about ensuring their safety while at work. So it doesn’t have to be a negative. Oh, they’ve made a disclosure, right? Big red line through that application. Because the reality is many people have preexisting injuries and conditions, and it’s much better that they’re being forthcoming about it in the pre employment phase so that they can be set up for success.

And for safety when they’re working.

Absolutely. Now, you said, you mentioned three, three dimensions there around capacity. So there was a physical, the second one was?

Cognitive.

Cognitive. And then there was psychosocial. So tell me a bit more about the cognitive.

So cognitive would be things like attention span and the like.

So it might be if they’re working in a high risk environment from a safety perspective, if there were any issues with attention span or being able to focus those sorts of things you’d want to be, nothing that out in the inherent requirements of the role. And when you’re actually.

Distilling what are the inherent requirements of the role it’s worth getting support from a specialist like an occupational therapist to actually, ascertain what those requirements are, and it’s not necessarily the case that you’d be doing this across the board and investing in every single role in your organization.

Exactly. But you start with the high risk ones, or if there are particular aspects of a role where, or particular role where you think, if someone had a pre existing mental illness that might pose a risk to their health and safety. And a good example is a call center environment. In that sort of environment, often someone is seated for a long period, or they might be at a stand up desk.

But from a physical perspective, the risks are relatively low. But from a psychosocial perspective, they can be quite high because you’re dealing with members of the public. Lots of people don’t like dealing with call center calls. And sometimes you can be exposed to, abuse, those sorts of things.

It’s high volume, high. Paced work. So if someone, for instance, had an anxiety condition and that was, quite elevated, then that could really pose a risk to their health and safety in putting them in that environment. So it’s looking at what are the really core aspects of a role that could place particular individuals at a risk to their health and safety, and actually distilling that and asking the appropriate questions.

Oh, okay. And Once we decide that we want to employ them, do we just send them an SMS or and what if they actually ghost me?

I would always encourage that lawyers love paper, but , the paper does have its purpose. I think a well drafted employment contract is really important.

And that’s irrespective of whether it’s a permanent employee. employee or a casual employee, you do actually want to have the relationship and what’s being offered to that individual set up from the beginning, because it sets the scene. Everyone understands what the offer is and what’s being accepted and what have you.

And. That way, if the person, if you send that letter offer and they ghost you you can manage expectations. So you can always include a cause in your employment contract. If we don’t hear from you with acceptance within X period of time, the offer automatically lapses. And so what’s a reasonable,

what’s a reasonable period to ask them to make a decision.

It’ll depend on the operational requirements of the business. If they need that role field. Imminently, it might be, A number of days, it might be a week. If, for instance, that person was interstate and had to make arrangements and those sorts of things. And it wasn’t that sort of immediacy that it might be a bit longer than that.

But certainly you can, if you’re putting an offer out there, you can actually determine how long it’s going to be on the table for.

So 24 or 48 hours is not unreasonable. If you’re looking for a quick decision, because I take it, with a number of applicants that there may be, you may want to actually make it reasonable, make a reasonable response to other people who are waiting on a response as opposed to them thinking that you’ve forgotten them.

Yeah, absolutely. And I think it’s worth managing expectations. Throughout the process. Indicating this is something that we’re hoping to fill really quickly with the right candidate. And so if we were, if we moved to offer stage, we’ll be hoping to, get a response ASAP. And so you’re telling the consistent story the whole way along and managing expectations in that way.

And things that go wrong when we the things that we need to look at to make sure we don’t do when we’re actually putting an offer out.

I think really importantly, if there are any preconditions to employment. So whether it’s. Police check work rights status check. So if someone’s working on a visa anything else, vaccination, what have you, making it clear that those are preconditions to employment, including that in the employment contract and not going to, sometimes what I see happens is it’s the wrong way around.

So all these checks are happening after the person signed the employment contract. And then they say, Oh, hang on. No, this doesn’t work. We can’t employ you after all. And then it becomes a bit of a mess. And similarly with capacity. Sorry. So

you’ve, so you’re making a clear distinction between the offer and an employment letter there.

So that’s actually quite important, isn’t it? So the offer basically says, we’re going to make you an offer with these three conditions. So now you need to go through a a physio assessment or an occupational therapist assessment. And at that point. After that, we can then actually provide you with a letter of employment.

Is that right?

Yeah, that’s right. Or if it’s something where you want to get the offer before them, but it might be the police check might take a little bit longer or a particular check, setting it up really clearly in the employment contract that if it’s The offer of employment is subject to the satisfactory police check.

And so if that police check comes back and there’s some issue with it, then the offer is off the table type thing. So it’s, it has to be clearly enunciated in the letter of offer. And again, with capacity for work. It’s subject to a functional capacity and those sorts of things. So sometimes businesses prefer to have a one page of saying, this is what we’re going to propose to offer you, but you need to go through these checks first and then the contract comes, others will go straight to the contract, but in the contract, there are some clear terms about preconditions that need to be managed.

But I think. If you’re not putting those things into the contract and then you’re imposing them subsequently, then it becomes quite messy. So it’s just making sure everything’s consistent.

Yeah. So this is really underlying, underlining that the employment process needs to be structured and diligent.

And really focused on the end in mind as opposed to, I think I need a an office staff member to do a raft of things. I’m not quite sure what they’re going to be. And then and then setting them up for failure because, you had 15 jobs for them to do. When any one of those was actually going to be a full time role.

Yeah, absolutely. I think really important that you’re intentional about it. You’ve scoped out what you’re recruiting that person for, and that’s going to set them up for success and make them more engaged because they’re actually doing, what they’ve been recruited to do. And it’s not, changing the landscape after they’re employed.

It’s also important from a legal perspective, because if that person is covered by. a modern award then actually understanding what their role involves will then enable you to classify them under that award. So modern awards are in effect, a decision of the industrial tribunal, the fair work commission that set the terms and conditions of employment for particular industries and occupations.

And so if that particular employer works in an industry that has a modern award. Then there will be classifications in that modern award, depending on the duties and responsibilities of employees, and that will then correspond to what the minimum wage rates are. So if you employ someone for a particular administrative role, and it looks fairly entry level, and that’s what they come in for.

But then you’re requiring them to do other things that are that have higher responsibilities under the award, then that can actually pump up their pay entitlements. So you do have to be. very certain about what the scope is. That’s not to say that from time to time, they may be asked to assist with little things here and there that are peripheral to what their substantive role is.

Your employment contract should confirm that they may be required to attend to other duties and responsibilities provided there within their skills and expertise. And that’s reasonable kind of thing. That’s fine. But Asking someone to apply for a particular role and then changing it completely is going to, I think set everyone up for a bit of failure there.

Yeah, and I must admit that my experience has been That quite often employers are not quite certain what it is that they actually need. All I know is that they’ve got a gap or they’ve got a capacity issue and that they need help.

So what do I need to consider in a letter of offer? And the employment letter, do they need to be different documents or can they just be the one document? How do I protect the business and set things up for success in that regard?

Yeah. So your employment contract does need to be really carefully drafted and you might have a letter of offer and then the employment contract, as I said before, you can just go with the one document provided it’s covering all bases.

And so you need to consider, is this And this, should have been nutted out in the recruitment process. But is it full time? Is it part time? Is it casual? That needs to be confirmed in the employment contract. Things like award coverage need to be considered again. So if that position is award covered, Some awards actually say that you need to notify the individual of their classification on commencement of employment.

So including that, and then, the key terms, the fundamental terms are of course, remuneration. And that’s obviously the big ticket item that the employee wants to look at. And so it might be that they’re paid an hourly rate. It might be that they’re paid a salary and all in salary. And if you are paying above award, then you want some protections in there.

around, what we call a set off clause. So it might be that an individual’s paid an above award salary that is paid in satisfaction for a reasonable amount of overtime in leave loading and the like. And so you want a well drafted set off clause that will say that Salary is in satisfaction of other award terms but if you’re unsure about how all this works, it’s always worth getting advice because if it’s not well set up, then that can result in, a claim for overtime payments, back pay, those sorts of things.

I think some of the other really important facets will be hours of work. So full time is generally 38 hours per week plus reasonable additional hours. But part timers often have to have their pattern of work set from commencement of employment if they’re award covered. So making sure that you’re enshrining that in the employment contract.

And then of course, casuals casuals don’t have. A set or indefinite guaranteed pattern of work. And there’s been a lot of talk about casuals in recent years. We’ve had some interesting decisions come out. So we’ve had changes recently to the Fair Work Act that have indicated that, if someone is described as casual.

It’s clear that they’re paid a casual loading because they don’t receive certain entitlements that permanent employees receive. And the contract is very clear on this and then they will be regarded as a casual. So it’s really important that firstly you have a contract for your casuals and secondly, that it’s not muddying the waters as to whether They are a casual or some other part time or whatever it might be.

And just on that, does the casual the length of service for casual actually changes their status after 12 months? Is that right?

Or? Yeah. So under the Fair Work Act now after a period of 12 months, we’re in the last six months up to that 12 month anniversary date, they’ve had a regular pattern of work or, reasonably regular, then they need to be offered casually sorry, conversion into permanent employment.

Now that’s the obligation that rests with the employer. There can be reasonable business grounds not to make that offer. For instance, if you’re not going to have the work, if there’s been a change in circumstances, you can’t guarantee it. But you still need to actually notify the casual at that point in time.

We’re unable to make you an offer of permanent employment for these reasons. So there are some fairly specific obligations and requirements around casual conversion that you do need to be aware of and actually only came into force in September this year. So it’s a very topical matter. And previous to that, we had casual conversion under modern awards.

Yeah, but it wasn’t consistent across all awards. So now it really reverts to the Fair Work Act process, unless you have an enterprise agreement that’s already in place that was put in place prior to these changes.

And the employee, of course, has the right to say no, they don’t want to be converted into a permanent or a permanent part time.

Does that put the employer at risk?

No, that’s absolutely fine. And often we see that happen because of course, casuals do get paid the casual loading. And depending on their circumstances, they may be quite happy to take the casual work with that high rate of pay. And they might not be interested in accruing leave and the like.

So if they are offered it and they say, no, that’s fine. They can continue as a casual. You just need to make a good record again, the paper trail really important. So that it indicates that you have made the offer as required under the Fair Work Act, but they decided not to accept it at that point in time.

So Georgie, when we’re looking at this employment contract the ones that I’ve seen have varied substantially in how sophisticated or comprehensive they are.

And the sorts of things that come to mind whether or not they should include things around, confidentiality of my information, confidentiality of their information how we handle our intellectual property. What are their moral obligations and and my rights.

Is it reasonable for me to actually impose restraints on them about, not being able to work for a competitor? And there’s, I never say anything about termination. What are the sorts of things that we do need to address and are some of those things important?

Yeah, really good question.

A lot of those things, if not all of those things are important. I think from a confidentiality perspective, there is an implied term around, ensuring the confidence of an employer’s confidential information. However, notwithstanding that, I’d always suggest that there are some bolstered protections in an employment contract, particularly for roles that will have access to substantial confidential information.

So it might be that you have A short term for someone who’s working in, a blue collar environment where they’ll have less access to confidential information if they’re in a sort of more junior role. But then someone who will have more substantial access than you really setting out those obligations of confidential information.

And you might even go so far as to include requirements around if they’re ceasing employment, requiring access to devices that they’ve been using for the purposes of their employment, including their own personal devices to in order for you to satisfy yourself that all confidential information is being removed at the end of the employment relationship.

So really important. And I think, in concert with that, having good systems in place during the employment relationship to protect your confidential information, IP is also really important. So if you want to be able to protect any intellectual property that is developed during the employment relationship, important that you have that set out in the employment contract and that the individual consents to you infringing their moral rights.

So it’s called under the legal. requirements. And so that then if they are developing IP, that becomes the property of the employer.

So is that not clear? If I employ someone and part of their role is to develop some software or to develop a process or to work on a project, which is my R and D, isn’t it, Painfully obvious that I’m paying them to do that and therefore it’s my rights or is it not that obvious or it needs to be made explicit.

So there’s legislation around copyright and the like, and you just want to be making sure that it goes without saying that it’s absolutely clear that anything that is developed Is the property of the company so that they can’t then leave and say, Oh, yes, that some of that was already in my head and all those sorts of things.

It’s, abundantly clear who owns that and there can’t be then disputes about it post employment.

Cause that’s quite different from contractors. I take it.

Yeah. If a contractor is providing a service, so they’re an independent contractor and they’re using their existing IP to assist with something, but they will be providing that service to a number of companies, then usually it’s known as background IP.

They will retain the interest in that. Now, if they’re being engaged to develop a very intellectual property that will be then something of value to that company. It might be different, but then that needs to be clearly articulated in the contract. So then restraints of trade really topical. And I think, we’re starting to see people moving around again as things are opening up in Australia.

And post employment activities very much under the microscope. At law, the position is that a restraint of trade. So a contractual provision that puts restrictions on a former employee’s post employment activities is on its face. Contrary to public policy and therefore void because there is a public interest in people being able to apply their trade, continue to work.

However, if there’s a written restraint of trade clause in an employment contract that is directed at protecting the former employer’s legitimate business interests. So things such as their client connections, their relationships with their other employees, then that may be enforceable but they need to be very clearly and carefully drafted.

So that’s to

help stop them poaching their buddies and taking them with them to another employer

or

actually their customers.

Yes. So again, this ideally should be tailored for the particular role. So you wouldn’t necessarily have the same sort of non solicitation restraint for a junior employee that you would for a very senior employee.

So you do need to consider that some of the things to also consider are the period of the restraints. It, it’s worth including what’s known as a cascading clause so that it’ll have the very highest limit, which might be 12 months and you wouldn’t go beyond 12 months in an employment restraint, then perhaps down to six months.

And then three months and then also considering your definitions in that particular clause. So if you’re going to protect your client relationships, your legitimate business interests will only really consider what relationships the departing employee had with particular clients. So if you’re a big national organization with lots of clients and they only dealt with Victorian clients, you can’t just say you’re not allowed to contact Any of our clients because they won’t have had relationships with the Western Australian clients.

And the problem is that if the restraint is too broadly drafted and it’s then considered by court, they’ll just cut out the entire cause if it’s too broadly drafted, except I will just put a rider on that in New South Wales, we have the restraints of trade act, which does enable the court to take a bit of a pencil to the restraint and.

Redraw it within reasonable grounds. But in every other jurisdiction, it’s far more restrictive in terms of what can be enforced. And then when we’re looking at non competes, these are even harder to enforce, because in effect, you’re trying to prevent someone from working in the same industry that might be in competition with your business.

So generally, non competes are only enforceable if you. It’s a very senior person who has had substantial access to confidential information. And the non compete has to be very particularly drafted. So often non competes are included for senior staff. As a deterrent, and then they can often be a bit of a negotiation if that person seeking to leave.

But more commonly we see the non solicitation on staff and clients, and they’re more likely to be reasonably enforced. So

probably not going to be enforceable but it’s a signal that you’re putting into the contract right from the start. Whereas a non solicitation is probably more enforceable and probably more clear cut.

Yeah, I think that’s right. And I think the non compete, have those in your executive contracts, you’re really senior key people. But again, if you’re thinking about the public policy ground of having people, continuing to apply their trade you do need to consider whether this is, capable of being enforced.

Yeah. Yeah. And and what about termination? Is it always a good idea to have how we’re going to terminate you at the same time as we’re saying how we’re going to employ you?

Yeah, look, it is actually a key term of an employment contract. It’s not something I’d put right up the front of your employment contract on the first page.

But it’s really important to actually have it in the contract. Yeah. If we don’t have a written term around termination of employment in the employment contract, the law will imply into the employment contract a term of reasonable notice. And so reasonable notice will always be at least what’s the statutory minimum under the Fair Work Act, which is a sliding scale based on service from one week to five weeks.

So it’ll be at least that, but it can often be quite a bit longer and it can be up to 12 months reasonable notice that could get implied. And where we can see this coming up is where there’s no employment contract at all written. There’s always an employment contract, but it’s not necessarily committed to writing.

Or what can happen from time to time is that someone has been employed perhaps back in the 1990s at a entry level position and they’ve worked their way up. But they’ve never been given, a subsequent employment contract. And that first one, talked about a week’s notice. And it was very specific to that role.

And there hasn’t been those updates in employment contracts. So if their employment subsequently terminated, and we’re considering what is their entitlement to notice. That first contract no longer applies because it related to a very different role. And so then the law will imply reasonable notice.

And if they’re quite senior, they have a long period of service. It could be quite substantial. So it’s always worth having your notice of termination, which at least has to be the statutory minimum, but can be longer. So it’s not uncommon to see an executive contract with six months notice in it. And that’s absolutely fine.

And also have in your employment contracts a term that says this contract will continue to apply notwithstanding any changes to your role, remuneration, hours, reporting, location, all those sorts of things. So ideally, if someone’s being promoted and their role substantially changes, you issue them with a new employment contract with updated restraints as an example.

But if for whatever reason that doesn’t happen, at least you have that initial contract that provides for notice. So there will be that protection against reasonable notice claims.

Yeah. And for organizations, is it with less than 20 employees? How does that affect the rights of the employer to terminate?

Small business employers. So they have left less than 15 employees. The employees can still be protected from unfair dismissal. But it’s a little bit different to em employers who have 15 or more employers. So employees, I should say. So an employee to make an unfair dismissal claim has to have completed a minimum employment period.

And for a small business employer, that’s 12 months continuous service. And then in order to minimize the risk of an unfair dismissal claim, the employer has to ensure that they’ve accorded with the small business dismissal code. So it’s in effect a checklist that the Fair Work Commission will publish.

And it indicates, have they a valid reason for dismissal? Have they accorded the individual procedural fairness? And it’s fairly straightforward. But. You still want to make sure you’ve ticked those boxes before moving to terminate if someone has completed the minimum employment period.

And I guess that also is relates to the topic of probation periods. What’s the deal on probation periods?

Yeah. So probationary periods are in effect a contractual term that determine, when someone’s I guess suitability for the role is being assessed once they’re employed. So typically they’ll be around the six month mark.

They’re often aligned to the minimum employment period for the unfair dismissal claim. So if it was a larger employer, it might be six months. But what we often suggest is that you actually make the probationary period a little bit shorter. And so it might be that it’s a three month period and your employment contract will state during the probationary period we’re assessing your suitability.

And often it could be the case that the notice period during the probationary period may be shorter, so it might be a week’s notice during probation, and then after that it could be. longer, it might be four weeks or what have you. And the reason for having the shorter probationary period is because generally speaking, you would hope that employees are on their best behavior, trying their hardest during the probationary period.

And once they get to that three month mark it could be that they relax into things a little more and, In some cases, show their true colors. And so if you’ve got past the three month mark, and then you start to see a marked change in their behaviors, in their performance, and what have you, you still have that buffer before they can make an unfair dismissal claim, which is at the six months, or it’s 12 months if they’re a small business employer.

So that way you could, if you had substantial concerns move to terminate their employment before the six month mark, and you wouldn’t have the risk of an unfair dismissal claim at that point in time.

So let me just be clear in my own thinking. So I offer somebody a position, I let them know there’s a probationary period of three months.

In that probationary period, I’ve got the right to terminate that will, but. With with a certain amount of notice after the three months the probationary period has expired and we’re all thinking that they’re fabulous Dr. Jekyll or Mr. Hyde then materializes between month three and month six.

And I still have the capacity to terminate. Is that right?

Without the risk of an unfair dismissal claim. Yeah.

Okay. I didn’t realize that. I thought that that that the only safe approach was to go for six months probationary period to pretty well cover the same thing. But I don’t need to. Okay.

Yeah.

So it’s just a practical way of trying to I guess have that extra check and balance in place. And I think some, one of the common questions I get asked is, can we extend the probationary period under the employment contract? And the reality is that you can do that by agreement with the employee, but it won’t impact the minimum employment period required for them to make an unfair dismissal claim.

So if their probationary period is six months and then you think, Oh, we’re not going quite sure we’re going to extend it for a further six months. You can do that, but they’ve already crossed the threshold into being protected from unfair dismissals. So then you have to have a valid reason and, I call them procedural fairness and the like in moving to terminate their employment, at the end of that extended probationary period.

All right. So it sounds to me like we’ve gone through the process of figuring out what our employment requirements are. We’ve advertised without putting our foot in it. We’ve interviewed. Another opportunity to put our footer in. They’ve we’ve pre qualified them and assessed their capacity for work.

And now they’ve got a letter of employment. So that being the case, on the first day that they join us, what do we need to do, if anything?

Yeah, really good question. Setting someone up for success from the first day is really important. So it’s not that they just turn up and then you say, Oh, that’s your desk off you go.

And that’s the end of it. You do want to make sure that they have been provided with all the necessary documentation, ideally prior to their first day so it might be a suite of policies and procedures so that they understand what the requirements Would be, and I’m going back to the employment contract, actually having reference to policies in there, but indicating they may be subject to change from time to time and they don’t form part of the employment contract.

And the reason for that is to enable the employer to change the policies as when it needs to, without individual employee consent. So they’re required to familiarize themselves with the policies and that it’s usually a good idea to do some induction training. So whether it’s in person or a lot of.

Employers use online sort of modules, and that would be ideally around safety, particularly depending on the environment, if it’s a high risk, for instance, a warehouse environment where forklifts are operating and the like, doing a really good site specific safety induction also appropriate workplace behavior.

So setting the scene from the outset of employment. These are our expectations around. appropriate workplace behavior. So no bullying, no sexual harassment, no discrimination and the like. And those sorts of messages need to be reinforced throughout employment. So with refresher training at least every two, if not every two years, if not annually.

But so going through those sort of induction process is really important. And then also considering, how will this person be best placed to be integrated into the team? So whether they’re buddied with someone else for a particular period whether there’s certain meetings or experiences they need to have in order to set them up for success, it might be, they need to do some on the job training.

So they learn the systems that are in place. So there’s a lot of. Role specific things that we need to be thought out, but on a global basis, at least having your safety and your appropriate workplace behavior from a legal perspective is really important.

Brilliant. Okay, so I think that’s, that puts us in good shape to understand how do we start the employment cycle.

Obviously, what you’ve highlighted there is whilst it’s a straightforward process, it’s not a simple process and it’s not a process to be taken lightly. How does , the small business or , the new manager who’s looking to employ , come up to speed on this if they don’t have an HR professional working with them.

Yeah, look, certainly there are a lot of publicly available sources and reputable sources. So certainly you can start with the Fair Work Commission or the Fair Work Ombudsman for very much statement of, what are the current terms and conditions and the Fair Work Commission will publish different decisions and important decisions.

And they also have things such as what are known as bench books. So they’re summaries of different jurisdictions, whether it’s, unfair dismissal, general protections enterprise agreements and the like. Certainly look at getting support from an industry association if you’re a member of one of those.

Or alternatively, if you have a relationship with a law firm that they might have a service in terms of publishing regular articles or blogs. And that’s definitely worth looking out for. So HR Legal regularly publishes updates on changes in employment law and safety law. And also if there are any notable cases that, may change the landscape for employers.

We’re certainly reporting on those. Businesses can head to our website to sign up to our mailing list. and distribution list. And we also conduct regular webinars on hot topics and employment law. Those webinars are free and they’re run generally on a monthly basis. But if there are a number of different topics occurring at particular time, often we’ll be running several throughout the month.

So they’re definitely worth looking out for. And if you subscribe to the mailing list, then you’ll get invitations to those. Otherwise, if you look us up on LinkedIn, we’ll often post those sorts of articles and updates. So it’s definitely worth having those at your fingertips, just so that you can be keeping up to date with the many developments in employment and safety law.

And then, at least having enough of an understanding to then be able to ask the question do I need to take further action or do I need further assistance to make sure that you’re meeting your minimum legal obligations.

Excellent. All right. And Georgie Now that we’ve got clarity around how we go about the employment process, how do we get how do we get people to get up to speed and get that additional advice should they need it around setting themselves up for success?

Yeah, look, I think it’s really worth getting some professional advice. So whether it’s from a lawyer or your industry association, HR Legal absolutely provides that support to businesses in determining appropriate pre employment processes, having well drafted employment contracts and policies and procedures, and also advising on award coverage, minimum Wages and terms and conditions and the like.

So definitely worth getting that support from a professional so that you’re set up on the right foot from the beginning.

Yeah. And so just with regard to HR legal, what’s your sweet spot of the types of clients that you typically work with? Are you. primarily working with Coles or are you working with the milk bar owner?

Look, we have clients across industries and occupations all employers but certainly different sizes. So we do have some small business clients, but then we also have a many medium and larger businesses. So we are equipped to deal with a broad variety of clients. And certainly for those who are seeking that sort of adjunct to their HR or management team.

There’s a number of different ways we can provide the support. So it can be fee for service. Providing an employment contract or a couple of templates, or we can give a FIPS fee estimate for that sort of thing. Or alternatively, we have some retainer based arrangements with clients.

So they work on an annual basis. And there they can cover a range of things, including all your documents ad hoc advice on different matters, as well as representation up to conciliation in fair work matters and workplace training and the like. So it’s very much scoped to the client’s needs.

And that can very much vary depending on the size and sophistication or in house capacity of the business. It is definitely worth getting the specialist support and it doesn’t need to be, war and peace. It doesn’t need to be a huge investment, but if you’ve got some of those key documents and processes set up well from the beginning, then that should really put you in good stead to continue as you grow.

Good stuff. Okay. So maybe not rely solely on Dr. Google.

No, probably not. No.

Good stuff. All right, Georgie. Look, thank you so much for your time today. This has been really illuminating.

Oh, that’s my absolute pleasure. Thanks for having me, John.

Fantastic.

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Ep01x E Georgie Chapman and JD – Recruitment.txt

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