If you asked anyone in business to name their biggest challenge prior to the global financial crisis, chances are the answer would have been labour shortages. 

The GFC provided business with a brief respite from this issue, but as WA prepares for a return to strong economic growth the labour shortages which crippled businesses in recent years threaten to return.

With a wealth of opportunities ahead, it is essential that both Government and business take action now to ensure employers have the ability to attract and retain the workers they need now and into the future.

CCI, the State's peak body representing the Western Australian business community, is taking a lead and active role in this important debate with a number of key initiatives planned to assist state and federal governments, along with business, in understanding what is needed to address this challenge.

Featuring a number of Australia’s high profile government and business leaders, the CCI Workforce Summit 2010 will examine some of the key aspects of the workforce development issue including education and training, migration and workforce participation.

Summit speakers will discuss the issues and outline a number of key initiatives which will help employers ensure they can secure the workers they need to develop and grow their business into the future.

Key speakers will include:

• Hon Julia Gillard MP, Deputy Prime Minister of Australia
• Hon Peter Collier MLC, Minister for Training and Workforce Development
• Don Voelte, Chief Executive Officer, Woodside
• John Nicolaou, Chief Officer, Membership and Advocacy, CCI
• Dr Sue Gordon AM
• Senator Chris Evans, Minister for Immigration and Citizenship
• Dr Penny Flett, Chief Executive Officer, Brightwater Care Group  

The CCI Workforce Summit will be held on 8 June 2010, at the Perth Convention Exhibition Centre. For more information about the summit please contact
CCI Event Services on (08) 9365 7528
or visit www.cciwa.com

As the Western Australian economy begins to recover, businesses are increasingly taking on new staff to meet demand.

Industry studies have suggested that 90% of new employees cement their opinion of a company during their probationary period.

The integration of new staff into an organisation is generally referred to as onboarding and includes the process of induction, orientation and probation.

Organisations that have implemented successful onboarding programs report success by following a few simple rules:

1.      Keep orientation simple and interesting. If orientation is interesting, exciting and simple, new employees will feel energised, valued and engaged. Consider mailing employees an induction pack prior to commencement to reduce first day angst.

2.      Make onboarding personal. Prioritise relationship building at
the start of the employment relationship rather than focusing on policy and procedures.

3.      Reinforce company values. Reinforcing the company’s values at each stage of the employment relationship is important to ensure cultural fit.

4.      Provide contact opportunities. Provide new employees with a buddy or mentor so they have a go-to person. This will not only increase engagement but mitigate any feelings of abandonment an employee may feel after the induction stage of onboarding.

5.      Take a holistic approach. An onboarding program is not something that has to be completed in a particular amount of time. Employers need to take a holistic approach which considers an employee’s career with the organisation.

It is important for businesses to manage employees during this onboarding process to adequately assess their suitability for the role and their fit within the organisation. Given the cost of recruitment and training it is important that managers dedicate time to directing and coaching new employees as well as providing feedback.

Feedback should be provided to new employees, whatever their performance, in a formal and timely manner. Giving positive feedback to new employees who are performing well provides these employees with both confidence and security. When providing feedback to a poor performing employee it is important to address the issues quickly and appropriately. A feedback meeting with a poor performing new employee gives both parties an opportunity to identify areas where performance can be improved and allows the employee an opportunity to show growth and commitment to the organisation.

There are a number of common mistakes that employers make when managing employees during the onboarding process.

If poor performance becomes an issue after an employee completes a probation period, it is often asked of management why they weren’t terminated during probation. In most organisations, the response is that the employee was not adequately managed and their poor performance was not identified.

Many employers do not set adequate goals and expectations during the onboarding process. Industry experts have suggested that from commencement employers should make sure employees understand the expectations and responsibilities of the role and hold them accountable.

Many employers believe they can terminate employees during a probationary period without legal recourse. While an employee is not generally able to access unfair dismissal during their probation period, they can still lodge a discrimination, harassment or bullying claim against their employer.

Employee relations tip

The introduction of the Fair Work Act 2009 from 1 Jan 2010 has seen an increased administrative burden for business.

National System Employers are now required:

• to provide employees with the new Fair Work Information Statement;
• to give new staff information regarding the award that covers them; and
• to give probationary staff notice of the employer’s intention to  terminate.

The commencement of the Fair Work Act (Cth) 2009 in July last year coupled with the start of the 122 new modern awards from 1 January this year has led employers in Western Australia to seek increasing degrees of assistance and advice from CCI’s experienced team of employee relations consultants and advisers on how to deal with these changes and the impact on their business.

Compared to the commencement of WorkChoices, where members predominantly sought assistance with individual registered agreements, under the new legislation the most popular topic is the transition to modern awards. Members are seeking record levels of advice on a large range of issues that impact on the employment relationship of every employee employed at every level of the business.

Presently more than 50% of members’ enquiries to the CCI Employee Relations Advice Centre are focused on obtaining assistance with determining if there are any modern awards applicable to the business, interpretation of the new modern award and confirmation of the current minimum terms and conditions of their employees.  Twenty per cent of member queries are requests to review and update common law contracts and workplace policies and procedures. Demand for assistance is expected to further increase from April where members will require specific advice regarding applicable transitional provisions that are due commence from 1 July, 2010.

CCI employee relations advisers and consultants have been providing advice and assistance on a wide range of matters that have been impacted by the introduction of the new workplace relations system including:

• award allocation to determine which new modern awards are applicable
• review of workplace policies and procedures
• enterprise agreement making
• changes to termination laws and the practice of performance management
• review of common law contracts of employment
• advice regarding existing agreements and how they interact with the new legislation and any applicable modern award
• transfer of business
• flexible working provisions
• individual flexibility agreements
• transitional provisions
• minimum wage rates
• union right of entry
• record keeping requirements
• industrial action
• assistance with award and agreement interpretation
• representation and advocacy

To obtain assistance members are encouraged to contact the Employee Relations Advice Centre on (08) 9365 7660 or advice@cciwa.com.

By Megan Arrowsmith
CCI Employee Relations Advice Centre Manager

The Federal Government promised its Fair Work system would deliver “fair and balanced laws” that would “allow workplaces to become more productive and competitive”. 

It was designed, Deputy Prime Minister Julia Gillard said, “to balance the needs of employees and employers to ensure Australia is competitive and prosperous”.

Yet WA businesses are already experiencing costly and disruptive strikes just seven months after the new laws started. Far from creating greater productivity, the strikes are causing massive disruption to large projects on which WA is relying to drive the economy forward.

In WA’s Pilbara region, construction workers on Woodside’s Pluto project took illegal strike action for eight days in January and several days in December 2009 over changes to accommodation, ignoring return to work orders from Fair Work Australia and the Federal Court. The strike is conservatively estimated to have cost the companies involved in excess of $500,000 per day. Of greatest concern is the knowledge that workers are prepared to act unlawfully about an issue that is outside of a registered agreement.

The new Fair Work system gives workers the right to take (lawful) strike action if it is related to bargaining for a new agreement. Workers taking illegal strike action at Pluto are already covered by agreements that have a number of years to run. They are unlikely to be involved in bargaining for a new agreement for several years, hence the strike is illegal. The Government refused to use its powers under the Act to cease the unlawful action.

In the offshore oil and gas industry, workers went on strike for four days in response to a 29% pay offer from Total Marine Services. At the end of the strike workers gained a 30% salary increase representing an average $50,000 per worker. In addition, workers will receive an industry allowance of $214 per day. The increases give no productivity dividend back to the company. It is worth remembering that the workers in this industry are already the best paid seafarers in the world. 

The Federal Government refused to use its power to cease the industrial action over an unreasonable demand devoid of productivity gain. To the contrary, the Government congratulated the parties on achieving this result; one that will ultimately drive up the costs of doing business in WA by setting a successful precedent for similar demands and behaviour across the industry and into other sectors of the economy.

CCI is also aware of industrial action in a number of parts of the construction industry.  Unions and workers are emboldened by their success in achieving generous pay increases without being held to account in relation to both the lack of productivity returns and unlawful behaviour.

If unions plan to continue exploiting the influence they are enjoying under the Fair Work system and are not held to account, workplaces will not become more productive and competitive as the Government promised. Rather, Australians will face a loss of jobs and a loss of business investment in WA.

Since the commencement of the parliamentary year in early February, CCI has been actively lobbying the Federal Government, Coalition and independent senators to retain the current compliance powers and penalties for unlawful conduct residing with the Australian Building and Construction Commission. It is clear that the threat of significant penalties being imposed upon individuals is the reason for workers returning to work, particularly in the Pluto dispute.

The Government, on the other hand, appears committed to its policy agenda of watering down the compliance powers and penalties, notwithstanding current high levels of industrial unrest and unlawful action taking place.

For further information please contact CCI’s Marcia Kuhne on (08) 9365 7699 or marcia.kuhne@cciwa.com.

By Marcia Kuhne
CCI Industrial Relations Policy Manager

Australian employees are stockpiling annual leave at an alarming rate, potentially risking business’ bottom line.

Australian employees have over $33 billion or 123 million days of accrued annual leave. Putting aside the financial liability to a business, there can be a number of detrimental effects to employees when they do not take their annual leave. Occupational health and safety, staff retention and morale may all suffer significantly if employees do not (or can not) take leave.

The financial liability for employers results as the often unrealised cost of the leave increases from year to year and as employees seek other types of leave such as stress leave or sick leave. The leading reasons employees do not take annual leave include anxiety about job security, lack of resources to adequately replace staff who take leave and lack of support from management.

Tourism Australia began promoting their No Leave, No Life campaign early last year and this campaign specifically targets how to encourage the taking of leave. Working with this campaign,
CCI has developed strategies for employers to encourage employees to take annual leave.

Why employees stockpile leave

Many employees think they are doing their employers a favour by not taking their annual leave and while some employees feel they cannot take annual leave there are those employees who simply choose to stockpile their annual leave for a longer, more ideal holiday.

Wide spread redundancies across the labour market have correlated with an increase in anxiety about job security among employees. During this period, employees were working harder to prove their value to the organisation and were more reluctant to take a period of leave. Annual leave for these employees was used as an emergency back up in case of job loss or illness and may have been cashed-out for extra money.  

Another barrier often reported by employees is lack of support from management to take leave. While not granting annual leave to an employee can help an organisation overcome workload in the short term, this can have serious long term implications.

Practical strategies to encourage leave

As we enter an unprecedented period of both industrial relations change and expected growth in the economy there is a positive opportunity for employers to adopt a strategy that encourages employees to take their annual leave.

In encouraging staff to take leave it is important that managers attempt to lead by example. While it is often hard for management to find the time to take leave it is important when implementing such a policy that senior staff members adhere to the policy and take their annual leave.

Moving into a period of economic recovery, the job market is improving substantially and as such employees are going to be looking at organisational culture in deciding where they want to work. An organisation that embraces a policy which encourages leave will not only retain skilled staff but also attract premium employees.

By Leo Nelson
CCI Employee Relations Adviser

The commencement of the Fair Work Act (Cth) 2009 in July last year coupled with the start of the 122 new modern awards from 1 January this year has led employers in Western Australia to seek increasing degrees of assistance and advice from CCI’s experienced team of employee relations consultants and advisers on how to deal with these changes and the impact on their business.

Compared to the commencement of WorkChoices, where members predominantly sought assistance with individual registered agreements, under the new legislation the most popular topic is the transition to modern awards. Members are seeking record levels of advice on a large range of issues that impact on the employment relationship of every employee employed at every level of the business.

Presently more than 50% of members’ enquiries to the CCI Employee Relations Advice Centre are focused on obtaining assistance with determining if there are any modern awards applicable to the business, interpretation of the new modern award and confirmation of the current minimum terms and conditions of their employees.  Twenty per cent of member queries are requests to review and update common law contracts and workplace policies and procedures. Demand for assistance is expected to further increase from April where members will require specific advice regarding applicable transitional provisions that are due commence from 1 July, 2010.

CCI employee relations advisers and consultants have been providing advice and assistance on a wide range of matters that have been impacted by the introduction of the new workplace relations system including:

•  award allocation to determine which new modern awards are applicable

•  review of workplace policies and procedures

•  enterprise agreement making

•  changes to termination laws and the practice of performance management

•  review of common law contracts of employment

•  advice regarding existing agreements and how they interact with the new legislation and any applicable modern award

•  transfer of business

•  flexible working provisions

•  individual flexibility agreements

•  transitional provisions

•  minimum wage rates

•  union right of entry

•  record keeping requirements

•  industrial action

•  assistance with award and agreement interpretation

•  representation and advocacy

To obtain assistance members are encouraged to contact the
Employee Relations Advice Centre on (08) 9365 7660 or advice@cciwa.com.

The Retail Traders’ Association of Western Australia has scored wins for retailers under Fair Work Australia’s changes to the Modern Retail Award.

With supporting submissions from the National Retailers Association and the Australian Retailers Association, the RTA gained the following successes. Several further items proposed by the Shop Distributive and Allied Employees Association (SDA) were rejected by FWA.

•  Ordinary hours were extended from 6.00pm to 11.00pm on weeknights.

•  Part-time workers were allowed working additional hours without overtime (unless hours exceed 38 hours per week), returning rostering flexibility to employers, providing it is mutually agreed with the employee.

•  Uniform laundry allowance has been restricted to one single payment per week, reducing the expected wage bill increase for retailers.

•  Sunday penalties for casual loading were dropped from 225% to the full time rate of 200%.

•  The practice in WA of paying employees for RDOs that coincide with a public holiday has been stopped.

Although these are impressive small steps towards reducing some expected wage increases, FWA has failed to fully recognise the demands of today’s modern shopper or understand that retail is a seven days a week industry. 

While FWA’s amendments give relief to retailers who keep their doors open on late nights to meet consumer demand, the Award still penalised retailers for opening on weekends. After some 18 months of combined efforts to represent retailers’ interests throughout every step of the award modernisation process, FWA is only just beginning to listen to retail concerns about the Modern Retail Award’s inflexibility for retailers to respond to consumer demand without facing archaic penalty rates.

FWA’s decision to award casual employees the same rate for working on a Sunday as permanent employees and reducing the penalty rate from 225% to 200% offered retailers minimal relief from an increased wage cost but the Modern Retail Award still fails to recognise the truly contemporary and highly flexible world in which retailers need to operate in order to survive - penalty rate structures are still based on a Monday to Friday working week when weekends are the busiest trading days.

On one hand, retailers are being pushed to stay open on weekends to meet consumer demand, but on the other they’re being punished for it with an archaic penalty rate structure.

FWA also accepted the application to allow part-time employees to agree to work additional hours without the payment of overtime unless their hours exceed 38 in the week.

FWA approved the application for a uniform laundry allowance, but has restricted this to one single payment
per week of:

•  $6.25 for full time employees

•  $1.25 per shift for part time and casual employees

This was previously $6.25 per garment, per week, making no distinctions between full timers working a five day week and a casual working one day a week. Sometimes multiple garments would be issued and so multiple payments would have had to have been made to each employee. While this may seem like a minor adjustment, it is one that could potentially save small retailers thousands of dollars per year.

The RTA commends FWA for rejecting outdated requests from the Shop Distributive and Allied Employees Association (SDA Union), including calls for voluntary work on public holidays, limiting the ability for employers to request employees to take annual leave and the payment of wages to employees on RDO where that coincides with a public holiday.

Recruitment is a necessary activity for most businesses at some point. What many companies fail to recognise is that recruitment is quite possibly the most important activity a business can engage in.

The importance of having experienced recruiters who understand the impact of poor recruitment practices is paramount in creating a stable and effective workforce and a more efficient and successful enterprise.

Quality recruitment practices have the power to minimise and potentially eliminate a range of substantial costs to a business. In pre-employment these costs can extend to discrimination, defamation of character and general protections claims to name a few. If a candidate is employed and subsequently terminated shortly after employment, a business may risk unfair dismissal, unlawful termination and workers’ compensation claims.

Claims aside, the general cost of replacing a staff member can have a significant financial impact on a business. The cost estimate of replacing a position is around 80% of the position’s annual salary, taking into account recruitment costs as well as efficiency loss while the position is vacant and in the initial employment phase until the new recruit is fully functioning in the role.

The manner in which a company recruits speaks to candidates about the type of business they have applied to work for and can play a significant role in reducing recruitment costs if applied correctly. Recruiters should bear in mind a poor recruitment experience for one candidate has the potential to negatively impact on the quality and quantity of a large number of future candidates.

Businesses often take the recruitment process for granted, deeming it a necessary evil. However, by grasping some basic fundamentals on how to recruit within legal constraints and how to apply best practice throughout the process can make the experience a positive and enjoyable one for both recruiter and candidate.

The first step a new recruiter should take is to gain an understanding of the governing legislation and where the business risks lie. Knowledge of equal opportunity and workplace law sets boundaries for the recruiter in terms of what can be discussed with a candidate and their referees as well as what should or should not be documented in the recruitment process. It also provides some exemptions where it may be possible not to employ a candidate due to a discriminatory ground.

The second step is to understand the strategic direction of the company. This should shape the recruitment process, for example the style of the interview or the particular skills that will be tested. Consideration should be given to how the company wishes to be perceived by candidates as well as what the company is endeavouring to achieve strategically in the market place in the future. Strategic recruitment is an integral part of a quality recruitment process and requires forethought and planning before commencing the process itself.

The third step is to understand how to run an effective interview. Considerations should extend beyond how you formulate your questions to that of the interview environment, body language, controlling the dialogue and impressing upon the candidate the company brand. Recruiters should be flexible, while working within a standardised structure. The interview should be tailored to the individual by rapidly establishing what motivates the candidate and playing to their individual needs and desires. The aim of the interview is two fold, to sell the company and the position to the candidates whilst determining the candidate’s ability to successfully perform in the position.

The final step is to provide a thorough induction for new recruits ending only when they are fully functioning in their new role. This might include mentoring or buddy systems, continual feedback and support throughout the initial employment phase to equip the employee with both the physical and emotional tools necessary to successfully operate in their newly appointed role.

CCI offers a range of training options for both new and experienced recruiters that will equip attendees with the fundamental knowledge to recruit wisely and effectively, including the course Introduction to Effective Recruitment and Selection on 24 March.

For additional information on available courses, please contact CCI’s Training and Events on (08) 9365 7500.

The Federal Government promised its Fair Work system would deliver “fair and balanced laws” that would “allow workplaces to become more productive and competitive”. 

It was designed, Deputy Prime Minister Julia Gillard said, “to balance the needs of employees and employers to ensure Australia is competitive and prosperous”.

Yet WA businesses are already experiencing costly and disruptive strikes just seven months after the new laws started. Far from creating greater productivity, the strikes are causing massive disruption to large projects on which WA is relying to drive the economy forward.

In WA’s Pilbara region, construction workers on Woodside’s Pluto project
took illegal strike action for eight
days in January and several days in December 2009 over changes to accommodation, ignoring return to work orders from Fair Work Australia and the Federal Court. The strike is conservatively estimated to have cost the companies involved in excess of $500,000 per day. Of greatest concern is the knowledge that workers are prepared to act unlawfully about an issue that is outside of a registered agreement.

The new Fair Work system gives workers the right to take (lawful) strike action if it is related to bargaining for a new agreement. Workers taking illegal strike action at Pluto are already covered by agreements that have a number of years to run. They are unlikely to be involved in bargaining for a new agreement for several years, hence the strike is illegal. The Government refused to use its powers under the Act to cease the unlawful action.

In the offshore oil and gas industry, workers went on strike for four days in response to a 29% pay offer from Total Marine Services. At the end of the strike workers gained a 30% salary increase representing an average $50,000 per worker. In addition, workers will receive an industry allowance of $214 per day. The increases give no productivity dividend back to the company. It is worth remembering that the workers in this industry are already the best paid seafarers in the world. 

The Federal Government refused to use its power to cease the industrial action over an unreasonable demand devoid of productivity gain. To the contrary, the Government congratulated the parties on achieving this result; one that will ultimately drive up the costs of doing business in WA by setting a successful precedent for similar demands and behaviour across the industry and into other sectors of the economy.

CCI is also aware of industrial action in a number of parts of the construction industry.  Unions and workers are emboldened by their success in achieving generous pay increases without being held to account in relation to both the lack of productivity returns and unlawful behaviour.

If unions plan to continue exploiting the influence they are enjoying under the Fair Work system and are not held to account, workplaces will not become more productive and competitive as the Government promised. Rather, Australians will face a loss of jobs and a loss of business investment in WA.

Since the commencement of the parliamentary year in early February, CCI has been actively lobbying the Federal Government, Coalition and independent senators to retain the current compliance powers and penalties for unlawful conduct residing with the Australian Building and Construction Commission. It is clear that the threat of significant penalties being imposed upon individuals is the reason for workers returning to work, particularly in the Pluto dispute.

The Government, on the other hand, appears committed to its policy agenda of watering down the compliance powers and penalties, notwithstanding current high levels of industrial unrest and unlawful action taking place.

For further information please contact CCI’s Marcia Kuhne on (08) 9365 7699 or marcia.kuhne@cciwa.com.

Trades Recognition Australia (TRA) has recently introduced a ‘Job Ready Program’ for international students applying onshore for permanent residence under General Skilled Migration (GSM).

The program, which is designed to increase the intending migrant’s prospects of gaining employment in their trade in Australia, must be completed before an eligible overseas student can be assessed as tradesperson as of 1 January 2010.

The program allows applicants additional time to gain experience in an Australian workplace in order to meet the assessment requirements and to develop and demonstrate their trade skills.

Essentially a four step process, the program consists of a preliminary online Provisional Skills Assessment of relevant work experience and qualifications attained whilst onshore in Australia, either as a student or employee, a Job Ready Employment component, a Job Ready Workplace Assessment and a Job Ready Final Assessment.

Upon gaining a successful Provisional Skills Assessment and subject to having a valid visa that permits work in Australia, an applicant can undertake the Job Ready Employment step which allows the applicant to complete 12 months full-time paid employment in their qualifying trade.

During this stage, an applicant must demonstrate proficiency in the workplace across a broad range of trade related tasks as well as complete training relating to Australian workplace English and culture. Such training will be provided by a TRA-approved Registered Training Organisation and will involve on-the-job assessment on site.

After working continuously in the trade for at least six months full-time, an applicant will be able to register for a Workplace Assessment (conducted by a TRA assessor) in order to determine their capacity to apply their trade skills in an Australian workplace.

Finally a consolidated application can be submitted to TRA for the Job Ready Final Assessment. A positive assessment is necessary for the purpose of applying for General Skilled Migration.

For further information contact CCI’s Kristen Pyrz-Brown (MARN 0851578)
on (08) 9365 7614 or email
kristen.pyrz-brown@cciwa.com.

All indicators point to another wave of skilled labour shortages in Western Australia with several massive resource and energy projects coming on stream.

According to research by CCI, WA will need to find an extra 400,000 workers over the next ten years, with a likely shortfall of 150,000 if there are no measures to grow the workforce.

Experience from the last wave of skilled labour shortages in Western Australia indicates that employers are going to need to develop better strategies to stand any chance of filling some vacancies in the future especially when looking to fill positions that do not pay the high levels usually associated with the resources sector.

The CCI Skills Match service was introduced a few years ago to assist members to identify and verify
skilled personnel from around Australia and overseas. 

In readiness for the next wave of shortages, CCI has now entered into an alliance with CareerOne.com.au to power CCI Skills Match. This new, dynamic service will provide businesses with greater assistance in the difficult, time consuming and expensive search for skilled labour.

When subscribing to the CCI Skills Match Database users will have additional access to the CareerOne Resume Database with over 500,000 CVs from Australian residents as well as the ability to search globally for the skilled workers outside of Australia.

CCI Skills Match can also undertake tailored programs for members which may include CV database interrogation, overseas market research/advertising, representation at appropriate overseas skilled migration events and interviewing of applicants to shortlist stage.

Employers will also be able to post their job vacancies on the CCI and CareerOne web sites through our special alliance which provides one low cost job listing and double the exposure (over 1.6 million unique browsers).

The Small Enterprise Network of Western
Australia (SEN) has been established to directly
engage with, and advocate on behalf of, small business.

Over 80% of all Western Australian businesses can be classified within the small business category, which highlights the importance of this sector to the economy.

Whereas CCI’s policy work does not distinguish its positions by business size, SEN advocates specifically for the needs of small business. SEN aims to provide a big voice for small business and offer new and exciting ways for small business owners to build their networks and business relationships. Any business with 30 or fewer employees is eligible to become a member of SEN.

This new initiative is a result of feedback from the business community as well as CCI’s understanding that this segment of the business community plays a significant role in ensuring the growth and wellbeing of Western Australia’s economy. Small business creates employment opportunities, generates wealth and delivers products and services to other businesses and the community at large. However, small business also faces very specific and unique business challenges, which must be communicated and understood by key decision makers.

It is vital that the concerns of small business are heard, understood and addressed by Government. Key issues for small business include the new industrial relations framework, payroll tax and labour availability. SEN will also seek guidance and input directly from its membership base to ensure that it is advocating on issues that are of most importance to small business.

Members will also benefit from additional support services and benefits, including opportunities to attend training courses and networking events. Members have full access to CCI’s existing range of publications and electronic media in addition to  invitations to CCI business briefings. Specific key CCI events and functions will ensure that small businesses are provided with helpful, relevant information they need to succeed.

A Small Enterprise Network Member Forum, chaired by Kate Lamont, will ensure a direct line of communication for small business.

To find out more about what the
Small Enterprise Network can offer
your business, contact membership
on 1300 4 CCIWA.

With the commencement of modern awards and the National Employment Standards (NES) on 1 January 2010, employers are faced with the task of ensuring compliance with the new components of the workplace relations system.

Given the complexity of the transition to modern awards and the short time frame between their release and commencement, many employers remain unaware of their obligations.

Transitional provisions are contained within each award and most modern awards contain the model transitional arrangements. However, particular awards contain specific transitional provisions and it is therefore important to check each award separately.

For most awards there are two distinct transitional phases.

The first stage began on 1 January 2010 with the commencement of the modern awards. The second, more complicated stage commences on 1 July 2010 and involves the transition of the ‘main matters affecting pay’. These matters are: minimum rates of pay; casual and part-time loadings; Saturday, Sunday, public holidays, evening and other penalties; and shift allowances/penalties.

It is important that employers understand what is required of them at each stage of the process and the need for preparation to lessen the disruption caused by the transition.

By 1 January 2010 employers should…

•  have determined which modern award/s will apply to their business and made sure they are familiar with the provisions of the award (including the relevant transitional arrangements);

•  most importantly, focus on hours of work and rostering. Although the new penalties and loadings contained in the modern award do not yet apply, the span of hours and any relevant overtime payments have come into effect; and

•  in making amendments to rosters or hours of work, ensure they are acting in accordance with their employment contracts, enterprise agreements and modern award. Any variation in hours may require consultation with employees, the provision of notice, or in the case of a reduction in hours, may require employee agreement.

Employers also need to be aware
that any allowances (other than
industry allowances) took effect from
1 January 2010.

By 1 July 2010 employers should…

•  be ready to implement the ‘main matters affecting pay’;

•  under model transitional arrangements, changes will be made according to a five step phasing process, whereby each step has a weight of 20%;

•  determine how their current pay arrangements compare with the requirements under the modern award;

•  where paying below the award, transition their payment up to the award rate in five equal instalments, annually, from 1 July 2010;

•  where the award rate is lower than that contained in the current award, be aware of the option of transitioning down in the same manner;

•  where paying over the award, have the option of absorbing any higher award rates into their over-award payment. However, employers must take into account the increase to the minimum rates due to occur in July 2010 (and each year thereafter); and

•  if an enterprise agreement is in place, be aware it will displace the modern award. However, employers should ensure their base rate is at least equal to the relevant base rate in the award which covers the classification.

The process of transition to modern award arrangements may involve complex transitional calculations for some organisations. CCI’s award service contains information on standard transitional provisions. However, calculations will need to be undertaken for each classification separately by the employer, taking into account the circumstances and pay rates unique to each organisation.

CCI will be conducting a series of award-specific sessions, to explain the provisions of the new modern awards. For more information contact the
CCI Employee Relations Advice Centre on (08) 9365 7660 or
email advice@cciwa.com.

Effective workplace investigations are essential to ensure a fair and unbiased procedure is carried out when complaints such as bullying, harassment or misconduct are made against employees in the workplace. 

When a complaint is made against an employee, it is critical that employers investigate the complaint in a thorough, unbiased manner. The nature of a complaint can vary from accusations of bullying or sexual harassment, to exposure of employee theft or fraud. In any case, a fair process must be followed to ensure the accused employee is afforded a fair go, a critical component in defending any subsequent unfair dismissal claims.

In addition, a fair investigation will reduce the company liability for claims brought against the employer. An employer can be held vicariously liable for the discrimination and harassment carried on by one of their employees in the workplace against another employee, unless it can be shown that reasonable steps have been taken to protect the employee concerned. Importantly, an employer must ensure that all complaints are treated seriously and investigated both promptly and fairly.

Often HR professionals do not have the requisite experience or confidence to conduct effective workplace investigations. Nevertheless, industrial tribunals will have the expectation that the presence of a dedicated HR professional should result in a fair outcome.

Below is an example of how to conduct a workplace investigation that may be of assistance to HR professionals who find themselves in this situation.

1. Take a statement

Take the complainant's statement as soon as possible while the incident remains clear in their mind. The statement should include information such as dates and times, the sequence of events, and witnesses that were present. The statement should then by signed by the complainant as a true and accurate reflection of the events.

The employer must then interview the subject of the complaint.

• The person should be offered the opportunity to have a support person present during the interview. This person is to provide emotional support to the person, they are not to respond on the employee's behalf or disrupt the proceedings.
• The company should also have a witness present. The witness could take minutes of the meeting and can corroborate what was said during the meeting should the need arise later.
• When the interview is conducted, ground rules should be established, and all present must be made aware the interview is strictly confidential.
• The person must be afforded natural justice and procedural fairness during the investigation process. The person must be made aware of who is making the complaint, the nature of the complaint, and given an opportunity to respond to the allegations. Their statement must be taken and their version of the situation investigated, such as approaching witnesses etc. 
• If the company believes the situation to be serious they should suspend the employee on full pay while they conduct the investigation. This may be an effective option if the complaint involves workplace bullying, as witnesses may be hesitant to come forward while the person is still at the workplace.

2. Investigate the incident

The investigation entails interviewing and taking statements from all witnesses and obtaining any corroborating or contradictory information. The employer must interview witnesses separately, so that they do not influence each others' recollection of events. It is important to remind employees of the need to keep sensitive issues confidential. As with the complainant’s statement, ensure that any information obtained includes specific first hand accounts including dates, times and actual observations. 

Both the complainant's and the respondent's statements must be investigated to ensure a fair procedure.

3.  Assess the results of the investigation

Once all the information has been obtained the company needs to assess whether there is sufficient concrete evidence to support the claim. If there is, a meeting must be held with the accused to present them with the evidence. There is no need to give the employees copies of the written statements, but they should be informed as to their content. Once the accused has been given an opportunity to respond, a decision needs to be made about the level of disciplinary action (up to and including termination) commensurate with the behaviours. The level of disciplinary action varies depending on the issue at hand and company policy.

In the case where there is no evidence to support the claim, the employee against which the allegations were made must be informed. In addition, the company may need to implement some measures to remind their employees that conduct such as bullying is not tolerated in the workplace. These measures could include:

• implementing or re-issuing the company policy on discrimination, harassment and bullying to all employees so they are aware of what is not acceptable conduct;
• conducting training on identifying discrimination, harassment and bullying;
• establishing (or reviewing) complaint handling procedures to ensure they are fair and timely, and;
• monitoring the workplace environment and culture.

By Esther Sunderland

CCI Employee Relations Adviser

www.cciwa.hradvance.com.au

HR Advance is a web based employee relations management tool that gives you access to a comprehensive library of HR documents that can be customised including contracts, policies, forms, correspondence and checklists. All documents come with extensive notes on their use and application.

HR Advance is backed by the Chamber of Commerce and Industry of WA and has been constructed by experienced legal practitioners to provide a reliable source of up to date help and information in a frequently changing industrial relations environment. Employers do not have to keep up with the changes; HR Advance does it for you.

Features and Benefits

• All your employment documentation requirements are in one, easy-to-access area. 
• Ability to create documents, including AWAs and Contracts of Employment, that are customised to your business. 
• Regular updates to the document library to coincide with the latest legislation mean that you can always be confident that you are up to date. 
• Regular email alerts to keep you informed of changes to legislation and subsequent changes to the documents will help you manage the impact of change on your business.

HR Advance Subscription Options

HR Advance has a range of access levels. HR Basics offers a selection of the most commonly used tools while HR Advance gives full access to the entire document library and all the resources.

There are over 120 user friendly documents and templates available including:

• AWA 
• Contract of employment 
• Recruitment Checklist 
• Performance Appraisal Form 
• Termination Letter 
• Leave Policy

and much more

HR Advance works on a 12 month subscription basis and users can log on and subscribe at any time using their credit card. You can then access the website as often as you like. Free online demonstrations are available.

Substantial discounts are available for CCI members and renewals attract a reduced rate.

Go to www.cciwa.hradvance.com.au to find out more information on this product.

Common law is well settled as to how employers can protect their business interests by restraining former employees from discussing trade secrets or capitalising on relationships with the ex-employer's customers.

Trade secrets 

Courts have consistently stated that employers are entitled to have their interests protected and may do so by restraining employees divulging secrets or putting such secrets to their own use.

Apart from these exceptions, employers are unable to protect against competition and must be prepared to encounter competition at the hands of former employees.

A restraint that attempts to restrict competition or a restraint against the use of a person's skill or knowledge acquired in the employer's business will not be upheld as a valid restraint.

Poaching of employees by ex-employees In April 2005, the New South Wales Supreme Court (Aussie Home Loans v X Inc Services [2005] NSWSC 285) had to determine whether a restraint purporting to stop ex-employees from enticing existing employees to leave the employer was valid under common law principals.

The Court referred to previous decisions which held that an employer had a legitimate interest in maintaining a stable, trained workforce, which could be protected against solicitation and enticement by a former employee but such restraint had to be reasonable.

In the case in question, the restriction stated that employees could not for a period of 12 months after the termination of their employment, for any reason, solicit, interfere with or endeavour to entice away any employee or contractor of the employer.

Employees have the right to work for a rival business which may offer more attractive terms of engagement upon duly terminating their arrangements with the employer.

In this case, the NSW Supreme Court held that the 12 month restriction was unreasonably long, particularly having regard to the fact employees were only required to provide one month's notice to terminate their employment contract.

As the restraint clause could not be read down, it was held to be unenforceable at common law.

In the matter of Miller-Smith v Richardson Pacific Ltd, at first instance, the WA Industrial Relations Commission was faced with a claim of contractual benefits in the form of unpaid redundancy monies at the rate of 3.5 weeks for each year of service.

The material facts of the matter before the Commission were:

• the applicant had worked in various capacities with the employer since 1988
• the applicant, at the date of her dismissal, was employed as the West Australian State Manager, whose contract of employment was mainly verbal but which contained the implied terms of the Minimum Conditions of Employment Act
• the employer was bound by a number of Federal certified agreements that applied to its production workforce. These agreements provided an entitlement of 3.5 weeks pay for each year of service in the event of a dismissal for reason of redundancy
• the employee was not covered by the certified agreements
• a practice had developed throughout the 1990s that when the employer made nonproduction staff redundant, employees were paid the same redundancy benefits as then applied to production employees bound by the certified agreements.
• there was evidence of this practice from a variety of documentary sources and by evidence of witnesses.
• the employee gave evidence that the managing director had confirmed the practice and told her that if she were made redundant, she would receive the same benefits.
• the ownership of the employer changed when another company bought its shares.
• during the “due diligence” phase, the Employer told the buyer that it did not have any policies or contractual obligations that affected the employee if she were made redundant.
• acting on this information, the buyer applied its own redundancy policy (2 weeks pay per year of service) when it made the employee’s position redundant.

The Commissioner found that the entitlement to 3.5 weeks redundancy pay arose out of the custom and practice of the employer since 1991.

He made a finding that there was no express term as to redundancy since the evidence given on that point was largely hearsay and inadmissible.

The employer appealed the decision on a number of grounds including that the Commission was in error in implying the term as a matter of custom and practice.

On appeal, a Full Bench of the Commission agreed that the Commissioner had erred in finding a term of contract based on custom and practice but allowed the employee to argue that the evidence demonstrated that there was an express term of the contract that ensured her entitlement to the redundancy payment of 3.5 weeks per year of service.

The express term arose out of the reported admissions by the general manager.

The Full Bench held that … “an informal admission by words or conduct made by a party or those in privity with a party is admissible evidence against the party of the truth of its context.”

The Full Bench affirmed the decision of the Commission at first instance, but for different reasons, and dismissed the appeal.

The moral of this case is this: management employees should be extremely wary of making informal comment as to contractual benefits to their employees.

Confirmation of such contractual rights should be left to more formal processes.

A new minimum salary threshold for positions being offered to temporary business entrants has recently come into effect.

From 11 February 2004, Australian employers seeking to sponsor temporary overseas employees for nominated positions in Australia will be required to pay a minimum base annual salary of $37,720 per employee.

This excludes additional payments such as superannuation, accommodation, bonuses or any other non- salary benefits.

The new minimum salary threshold is an upward revision of the base salary level of $35,828 which has been in effect since November 2002 and reflects the average annual earnings for all employees in Australia, as at February 2003.

In addition, a new separate minimum annual salary of $46,620 will apply to information and communication technology positions to better reflect the typical salary for experienced professionals in that industry.

The gazetted revision has been made despite CCI’s expressed concerns that the minimum salary threshold arrangements for temporary business entrants is set inappropriately in relation to some state and relevant federal awards which apply in WA.

The arising disparity between the gazetted salary threshold and some awards previously highlighted to the Federal Government is preventing some employers from accessing temporary overseas employees. This has created difficulties particularly in areas where there are identified skill shortages. While the gazetted salary level will apply to position nominations lodged on or after 11 February 2004, the new level will not affect employers in regional and low-population growth areas.

Under special provisions introduced in 2002, employers in regional Australia may seek an exemption from the salary requirement under exceptional circumstances.

For more information contact Ivan Hoe at CCI Migration Services on 9365 7614 or e-mail: hoe@cciwa.com

There are a number of avenues for entry to Australia depending on the length of time people intend to remain in the country.

Short-term stay

The business (short stay) visa
This visa may be issued for single or multiple entry. Holders of a multiple entry visa may make any number of journeys to Australia for up to three months on each occasion.

Multiple entry visas may be valid for up to five years, or the life of the passport (to a maximum of 10 years). Applicants must apply for this visa outside Australia.

The Electronic Travel Authority
The ETA allows tourists and business visitors to obtain visas for Australia at the time they make their travel arrangements. The ETA system is accessible through travel agencies and airlines in the United States, Japan, Singapore, Malaysia, Korea, United Kingdom and many other Asian and European countries.

The APEC Business Travel Card
This card provides business people with simplified entry to a number of economies of the Asia-Pacific Economic Co-operation (APEC) forum. Holders must be passport-holders of one of the participating countries, currently Australia, Chile, Chinese Taipei, Hong Kong SAR, Korea, Malaysia, New Zealand and the Philippines.

Brunei, Darussalam, China, Indonesia, Peru and Thailand have also joined the scheme and will commence issuing cards in the near future.

Cardholders enjoy express immigration clearance and pre-cleared entry to participating economies.

Long-term stay

Longer terms are available for business people allowing up to four years temporary residence in Australia. A number of visas facilitate the entry of a long- term visitor to Australia.

Labour agreements
A labour agreement is a formal arrangement negotiated between the Commonwealth Government, represented by the Department of Immigration and Multicultural and Indigenous Affairs (DIMIA) and the Department of Employment and Workplace Relations (DEWR), and an employer or industry association.

Labour agreements enable Australian employers to recruit a specified number of workers from overseas in response to identified or emerging skill shortages in the Australian labour market. Agreements are normally negotiated for a period of two to three years.

Regional Headquarters Agreements
RHQs are a form of labour agreement negotiated between the Department of Industry, Tourism and Resources (Invest Australia), DIMIA and an employer who wishes to locate their regional headquarters in Australia. These agreements offer both permanent and temporary entry to key executive and specialist personnel who are essential to the establishment and management of the Australian-based regional operations.

Immigration arrangements for those entering Australia under an RHO are streamlined and given priority processing over standard labour agreements.

Business Temporary Entry visa
These arrangements cater for employers wishing to sponsor the temporary entry of highly skilled personnel to Australia. Under the current arrangements employers are able to sponsor a range of occupations including professionals, para-professionals and skilled trades people who have employment in Australia.

CCI Migration Services is available to provide advice and guidance to employers seeking to sponsor an employee from offshore.

For more information contact CCI Migration Services on 9365 7618 or e-mail: visas@cciwa.com