|
2009 DIARIES
MTA members are reminded that we now have the 2009 diaries in stock at a cost of $28 each.
Limited supply - place your order now!
EMPLOYMENT RELATIONS UPDATE
Small Business Fair Dismissal Code
WorkChoices changed the way unfair dismissals were handled. This change was the result of the unfair dismissal system being abused by problem employees and their representatives trying to 'shake down' employers for extra cash, following termination.
To reduce some of these abuses, the then Federal Government legislated that an employee was excluded from making an unfair dismissal application if the employer employed less than 100 employees. This exclusion is now in the process of being removed from the industrial relations legislation by the current Federal Labor Government.
The Federal Government has announced that the unfair dismissal legislation which was going to operate from 1 January 2010 will now commence on 1 July 2009, six months earlier. The changes propose that if a business has more than 15 employees, then, after six months service with a business, an employee can lodge an unfair dismissal application if employment is terminated. If the business is considered to be a small business (defined in the legislation as those employers with fewer than 15 employees) then the employee is required to be with the business for at least 12 months.
To assist small businesses to meet their obligations under the legislative changes the government has introduced a "Small Business Fair Dismissal Code". This Code can be obtained from: workplace.gov.au website under the heading New Industrial Relations System. The Small Business Dismissal Code sets down how a small business should handle the termination of an employee under a number of broad headings.
Redundancy: The Code makes it clear that an employee who is dismissed due to a downturn in business cannot bring a claim for unfair dismissal. The Code then goes on to state that a redundancy needs to be genuine. If an employee is dismissed on the grounds that they were redundant and they subsequently lodge an unfair dismissal claim, the employer will be responsible for satisfying Fair Work Australia that the employee was dismissed for a genuine operational reason.
Summary Dismissal: The Code provides that an employer can summarily dismiss (without notice) an employee whose conduct is "sufficiently serious to justify immediate dismissal". The Code then describes serious misconduct as theft, fraud, violence and serious breaches of occupational health and safety procedures. In the circumstances of theft, fraud and violence, the Code provides that it is sufficient though not essential that the employer make a report to the police.
The "Small Business Fair Dismissal Code" then goes on to address the more common types of dismissal and the procedural approach that an employer should generally use when dealing with a problem employee. The emphasis in the Code is on the application of procedural fairness. An employee needs to be made aware of why they may be dismissed. A valid reason needs to be provided, based upon the employee's conduct or capacity to do the job. The employee needs to be provided with a warning (preferably in writing) that they risk being dismissed if there is no improvement. The employee needs to be given the opportunity to respond and have the opportunity to rectify the situation. The employee can have another person there to assist them. The basic idea behind a warning is to rectify the problem rather than dismissal of the employee if at all
possible.
If an employee lodges an unfair dismissal application with Fair Work Australia the employer will be required to provide evidence that they have complied with the Code. Such evidence may include copies of a written warning/s, a statement of termination, signed witness statements and in the case of a small business a "Small Business Fair Dismissal Code Checklist".
Small Business Fair Dismissal Code Checklist:
Q1. asks if your business employs under 15, or 15 and over employees. If you have fewer than 15 employees the Code and the Checklist apply.
Q2. asks if the employee (a full-time, part-time or regular casual) has been employed by your business for 12 months or more. If they have worked for you for less than 12 months, they cannot lodge an unfair dismissal claim.
Q3. asks if the employee was dismissed because of a genuine redundancy. If you answer yes to this question, you are required to explain the reason for the redundancy such as economic downturn, new technology or other reasons. This will open up the issue of whether the employee was terminated in accordance with any redundancy obligations emanating from the National Employment Standard, an Award or an agreement.
Q4 & 5. ask whether the employee was dismissed for serious misconduct. This question appears simple enough but as an employer you need to be careful as to the consequences these questions may have for your business. The status of the Fair Dismissal Code Checklist and whether it can be used as evidence in other forums is yet to be made clear. It is recommended you contact the MTA before completing these questions.
Q6. asks whether the employee was terminated because of unsatisfactory conduct, performance or capacity to do the job. Six sub-questions are then asked that go to procedural fairness such as warnings, counselling, opportunity to respond, time to improve, etc. The questions go to not only "did you have a good reason to terminate the employee" but also whether 'the employee has been afforded due process and the termination is procedurally fair'.
Q7. asks if the employee was dismissed for some other reason and seeks further information.
Q8. asks if the employee resigned or abandoned their employment and requires the employer to provide further details. This question goes to the issue of the employer keeping adequate records of the termination of an employee as already required by the Workplace Relations Act 1996.
The Checklist then concludes with the requirement that the employer sign and date a declaration in the following terms: "I declare that I believe every statement or response in this checklist to be true".
Employers need to be aware that the flexibilities that existed under the WorkChoices legislation when it came to dismissing a problem employee will no longer apply once the new legislation comes into operation. Members are advised to contact the MTA before dismissing an employee to save your business from a lot of heartache.
Christmas Close Downs
It is timely to remind members of their legal obligations under the industrial awards or legislation, where it is intended to close or shut down all, or a section of the business over the coming Christmas-New Year period.
The Workplace Relations legislation (the annual leave standard which applies to all employees of a corporation) does not require employers to give notice of an intended close down. However, MTA would recommend that as much notice as possible be given to employees in such circumstances.
Employees who have insufficient leave to cover the close down period are required to take all paid leave that is due to them, with the remainder of the close down period treated as leave without pay. Employees with an accrual of annual leave exceeding the duration of the close down are normally required to take a sufficient amount of leave to cover the duration of the close down.
MTAA SUPERANNUATION 
MTAA Super wins prestigious SelectingSuper’s Superannuation Fund of the Year Award
MTAA Super has been awarded the prestigious Superannuation Fund of the Year Award by leading independent industry researcher, SelectingSuper.
Leeanne Turner, MTAA Super’s Deputy Executive Director, accepted the award in recognition of the Fund’s exceptional achievements at SelectingSuper’s award’s ceremony held Friday at the MCG in Melbourne.
MTAA Super was also awarded the Workplace Fund of the Year award, from a field of short-listed finalists including a number of Australia’s best performed superannuation funds.
“MTAA Super is proud to be awarded SelectingSuper’s Superannuation Fund of the Year and Workplace Fund of the Year for 2008” said Michael Delaney, MTAA Super’s Principal Executive Officer.
“At the same time, we are conscious that current events on world financial markets mean many of our members are concerned about the impact on their retirement savings.”
“I can assure them that our focus continues to be on building value for them over their working lifetime and these awards in large part, recognise the long term performance of MTAA Super’s ‘two portfolio’ investment strategy.”
“Our approach is always to generate favourable returns in the long term, while aiming to help protect members’ accumulated retirement savings during downturns on listed equity markets” he stated.
“Our Trustees’ preparedness to be early adopters of investments in infrastructure, direct property and direct equity assets has set MTAA Super apart and made us different. That difference has helped us achieve and continues to contribute to our leading long term investment performance.”
MTAA Super is one of Australia’s largest industry super funds with more than 285,000 members, 33,000 employers and over $6.0 billion funds under management. MTAA Super is the industry superannuation fund for the motoring industry but all Australians can join.
For more information contact MTAA Super on 1300 362 415 or visit the website www.mtaasuper.com.au
OFFICE OF REGULATORY SERVICES UPDATE
Workplace Inspectors on the Increase
An increase in the number of ACT Government Occupational Health and Safety Inspectors will result in more workplace safety inspections. This is a direct result of the increase in funding in the 2008/09 budget.
Four (4) new Inspectors have commenced duty in the Office of Regulstory Services.
Additional resources in the vital area of workplace safety will mean more site visits. Inspectors will assist employees to understand their roles and responsibilities in managing their own safety as well as raising awareness and providing education and advice to employers and workplace managers.
www.worksafety.act.gov.au
The ACT OHS Commissioner's new website www.worksafety.act.gov.au is now operational. The site provides access to a range of new publications, posters and advice. The site will be of special interest to Small Business - an area that the Commissioner is focusing on in the interests of improving the range of resources available to this key stakeholder group.
CGU MOTOR TRADES 
Media Release
Theft, Vandalism costs Businesses $ 27 Million
Service Stations and Liquor Outlets were the types of small businesses that were most likely to be the victims of crime, followed by General Stores, Newsagencies and Pharmacies. These businesses were being targeted with theft and vandalism, and this was costing businesses in NSW & the ACT more $ 27 Million a year. CGU Motor Trades said that these were the two biggest reason for insurance claims among businesses.
“It’s concerning that claims involving vandalism & theft are consistently high” said CGU Motor Trades, State Manager—Paul Waite.
He said that common forms of malicious damage included graffiti and smashed windows, and whilst individual businesses were adversely affected, these types of crimes also had an impact of the whole community.
“Businesses should consider the risk of their own business and seriously look at installing alarm systems, grills on windows, identification tags on assets, security lighting and CCTV Surveillance,” said Mr. Waite. “These proactive measures could make a difference in your business becoming a target. Alarms in particular, are a basic yet effective form of business security,” he said.
“Whilst there is no single Alarm System that caters for all businesses, it’s important that all Owners seek qualified technical advice and gather as much information as possible before determining which alarm will do the best and most effective job in protecting their business.”
“Imagine if you installed a relatively inexpensive Alarm System, only to find out that whole system failed if the phone lines were cut, or the power was isolated during a burglary. Imagine the stress with having to try and recoup your losses following a break-in, so it pays to be well prepared,” he says.
To help keep businesses safe, Mr. Waite offered some serious considerations :
INSTALL deadlocks and Key Operated Window Locks. FIT physical barriers such as grills and/or bars to external windows. It’s also a good idea to affix bollards in front of driveways.
INTALL an Alarm that can be monitored off-site, and has multi-movement activated sensors.
Understand the capabilities of your current Alarm System – will it work if the phone line is cut, and if it’s going back to my Mobile Phone …. do I always have reception, or hear it ring.
INSTALL perimeter lighting—especially in those vulnerable areas.
KEEP Safes and valuables out of view and make certain that the Safe is locked. RETAIN an updated record of both Assets and Receipts.
BACK-UP Computer Data regularly and always keep a copy off-site. SECURITY mark Computers or other valuable equipment.
For further information on Business Security, please contact -
State Manager, Paul Waite on Mobile 0411-013861 or
your local ACT Motor Trades Representative, Laurie White on Mobile : 0408-925842
MTAA SUPER SEMINARS 
Member Education Seminars
Everyone wants a comfortable retirement, but not everyone knows how to get there. MTAA Super conducts free seminars across Australia aimed at helping you get the most out of your super and plan for the retirement you want.
The seminars are of benefit to anyone who would like to develop a better understanding of their superannuation and retirement planning options. They are delivered by financial planning experts and topics covered include:
• Features and benefits of MTAA Super
• Making contributions, including salary sacrifice and voluntary contributions
• Tips and techniques for maximising your superannuation
• The mechanics of lump sum withdrawals and superannuation pensions
• Retirement planning and taking advantage of the transition to retirement rules, which allow you to access your super while continuing to work
MTAA Super is open to the general public so anyone is welcome to attend. For dates and locations visit our website www.mtaasuper.com.au or contact us on 1300 362 415.
|
