Strategic Employment Advice — The Way to Stay One Step Ahead!

Strategic employment advice covers a range of areas with the principal objective being to provide pro-active business orientated advice that aligns human resources with commercial goals. Some of the more common advice areas are as follows:

In this article we will examine each of these areas and outline some of the issues that can arise.

From time to time, employers will review the human resources component of their business to ensure that their workforce continues to complement the operational requirements of the business. This may also be due to organisational changes concerning the functioning of the business including changes to procedures, technologies and workflows.

Sometimes the outcome of these reviews requires changes ranging from jobs being no longer required to an alteration to duties, responsibilities and reporting structures. While the management decision-making process is somewhat unregulated, the implementation of these changes is highly regulated and if done incorrectly can be unlawful. Advice should be obtained prior to the implementation of these changes.

One of the most common problems that arises is when a redundancy is found to be unlawful due to non-compliance with the genuine redundancy requirements of the Fair Work Act 2009 (Cth) (‘FW Act’). There may also be contractual issues that either restrict or impose additional obligations when making changes to an employee’s job.

There are issues that arise concerning staff members when an existing employer sells their business to another employer. While some employers seek advice after the sale contract is agreed, it is a good idea to obtain advice prior to signing the sale contract.

If the other employer intends to employ the employees of the existing employer, then arrangements need to be made to facilitate this transfer to the other employer. It is not possible to transfer employees without their consent. Recognition by the other employer of the employees’ service and entitlements with the existing employer will need to be determined. If the other employer decides not to employ the employees, then there will likely be an obligation for the existing employer to pay redundancy pay to eligible employees.

If the existing employer has an enterprise agreement, then in many cases this will transfer over to the other employer with the existing employees unless the Fair Work Commission orders otherwise.

Risk management is a pro-active step to mitigate liability due to non-compliance with industrial relations laws. This entails an auditing process.

Employment contracts can be reviewed in terms of being up to date with current industrial relations laws. It will also involve determining whether there are any provisions that are inconsistent with the National Employment Standards (‘NES’) of the FW Act and an applicable modern award or enterprise agreement.

Wage rates can be reviewed by auditing sample pay slips to determine whether employees have been paid their entitlements in accordance with the applicable modern award or enterprise agreement.

Modern award and enterprise agreement compliance can be conducted by an employer submitting questions regarding the interpretation of specific clauses. A written advice is then provided which can also assist with an interpretation for other employees in the same circumstances.

Strategic employment advice is a good way to ensure compliance with industrial relations laws. It can also be a pro-active step in order to mitigate liability due to non-compliance. There are many areas that advice can be provided with the most common concerning workplace restructuring, commercial transactions involving employees and risk management.