Protecting your staff from workplace bullying

Protecting your staff from workplace bullying is necessary in this day and age; just as is protecting your business from potential lawsuits as a result of workplace bullying.

According to the Fair Work Ombudsman, workplace bullying is defined as any repeated behaviour towards an individual or individuals by another individual or individuals that is unreasonable and causes any risk to health or safety.

Understanding the difference between reasonable and unreasonable behaviour is important; not all workplace discrepancies are classified as bullying.

Examples of reasonable behaviour according to Safe Work Australia include:
– Transferring a team member to another department
– Reviewing employee performance
– Discussing unreasonable behaviour conducted by an employee with said employee in a private setting
– Setting clear and reasonable employment goals

Unreasonable behaviour includes:
– Any abusive, derogatory, insulting comments or remarks
– Deliberate and obvious exclusion of an employee/s
– Creating unrealistic and unachievable performance goals and deadlines
– Discrimination and sexual harassment
– Physical violence

Your business should consist of appropriate reporting channels should any incidents of workplace bullying arise to protect those involved and your business. An established procedure should be developed to follow in all instances of bullying. The procedure ought to include easy and confidential reporting methods, mediation and ongoing monitoring of how effective management of the incident has been.

Reasons to make a valid Will

Without an up-to-date and valid Will, you are missing out on a critical opportunity to make proper arrangements for your family’s future.

For a Will to be considered valid:
– it must be in writing
– the will-maker must have the mental capacity
– it must be voluntarily signed by the will-maker or by some other person in the presence of and at the direction of the will-maker
– the will-maker’s signature must be made or acknowledged in front of two or more witnesses, present at the same time
– must be signed, dated and witnessed by two other parties
– the signature of the will-maker or person signing at the direction of, and in presence of the will-maker must be made with the intention of executing the Will.

Here are five reasons why you should make a valid Will:

Provide for the people you care about
If you don’t have a Will it is unlikely that what you want to happen will happen. Instead, your estate will be governed by the laws of intestacy under the Succession Act 2006 and the people that you would like to see benefit from your estate may not.

Leave particular gifts or items for friends or relatives
If you have particular gifts or items that you would like to see passed to particular friends or relatives this isn’t possible unless you have a Will which states your wishes.

Appoint someone you trust to be your executor
When you make a Will you have the choice of appointing your executor; this is the person who will administer your estate and distribute your assets in accordance with your wishes.

Leave particular instructions
If you have pets that you would like a friend or relative to look after or you have particular burial wishes, these can be included in your Will.

Appoint a guardian for your children
You cannot appoint a guardian for your minor children without a Will. If both parents of the children died, guardianship of your minor children would likely pass to the grandparents, and it may be necessary for the Court to decide which grandparents.

Protecting your finances after separation

The end of a relationship is a particularly difficult time for most individuals – among the emotional pain comes the burdensome administrative tasks such as sorting out finances.

Although these tasks may seem tortuous/complicated; it is best to promptly address financial issues to safeguard your finances against misuse and ensure a piece of mind.

Here are three things to consider when protecting your finances after separation:

Joint accounts
If you think your former partner may exploit your finances, it is worth considering closing your joint accounts. Both account holders need to agree that the accounts should be closed. You will need to discuss how the remaining balance will be divided with your former partner, as you must have zero funds in the account before closing it. It is then necessary to establish your own account and redirect any direct debits or credits from your joint account to your new account (or make alternative arrangements).

Your will and power of attorney
Your will may not be the first thing to come to mind after a breakup, however, it is a critical document that needs to be reviewed, especially if your former partner is listed as a beneficiary or executor. After separating, review your will with a legal professional to make any necessary changes. If you appointed your former partner as your power of attorney, you may also consider revoking them upon separation. Again, a legal professional can aid you with this decision.

Home and other joint loans
Upon separation, it is best to advise any lender/s of your separation and the arrangements for paying the loan. Notify your bank if you wish to discontinue any redraw facilities or linked credit cards attached to your loan. Ask your bank for a written confirmation letter and keep a copy in case there are any issues down the track.

Employee or contractor: Know the difference

Employers that incorrectly treat employees as contractors can face hefty penalties and charges as well as claims for entitlements and superannuation contributions.

Sham contracting arrangements, where an employer attempts to disguise an employment relationship as an independent contracting arrangement, are illegal and breach the Fair Work Act 2009.

Under the sham contracting provisions of the Fair Work Act 2009, an employer cannot:

• misrepresent an employment relationship or a proposed employed arrangement as an independent contracting arrangement

• dismiss or threaten to dismiss an employee for the purpose of engaging them as an independent contractor

• make a knowingly false statement to persuade or influence an employee to become an independent contractor

Employers who engage in sham contracting arrangements can face serious penalties for contraventions of these provisions. The courts may impose a maximum penalty of $54,000 per contravention.

These businesses also risk penalties and charges from the Tax Office, including:

• PAYG withholding penalty for failing to deduct tax from worker payments

• Super guarantee charge, made up of super guarantee shortfall amounts, interest charges and an administration fee

• Additional super guarantee charge of up to 200 per cent

The ATO provides guidance to work out if a worker is an employee or contractor for tax and super purposes. Here are the key differences between employees and contractors:

Managing employee absenteeism

Employers must be mindful of the legal consequences that may occur if they terminate an employee on the basis of excessive absenteeism.

Under the Fair Work Act 2009 (Cth) an employee whose employment has been terminated on the grounds of excessive use of sick leave may bring a claim alleging unfair dismissal, discrimination or adverse action.

An employer is in breach of the Fair Work Act if an employee is terminated on account of the employee being temporarily absent from work due to a prescribed kind of illness or injury.

However, it is not a prescribed kind of illness or injury if the illness or injury extends for more than three months or the total absences of the employee within a 12-month period have been more than three months and the employee is not on personal/carer’s leave for the duration of the absence.

Employers can minimise their risk of legal action by adopting a policy for dealing with absenteeism. A well-defined policy will explain the processes for taking sick leave and what will happen in cases of excessive sick leave. The policy should clearly state where medical evidence, such as a medical certificate, is needed and the consequences for misuse of sick days.

If you find certain employees are taking frequent sick days, it may be a good idea to have a chat to them about what is going on and if necessary, offer flexible working arrangements. Be sure to address employees who have established a pattern of taking particular days off, such as Mondays or Fridays, to let them know you have noticed their behaviour and it is putting pressure on your business.

Even if you do have the grounds to terminate an employee for excessive sick leave, it is a good idea to obtain professional advice before taking any steps to terminate an employee as many legal ramifications may still arise.

Unfair contract terms now underway

Small business owners are now protected from unfair terms in standard form contracts by a new law introduced 12 November 2016.

A standard form contract is one that has been prepared by one party to the contract and where the other party has little or no opportunity to negotiate the terms. Small businesses enter into and renew standard form contracts regularly, especially between large suppliers such as lenders, insurance companies and telecommunications.

The new law will apply to a standard form contract entered into or renewed on or after 12 November 2016, where:

• it is for the supply of goods and services or the sale or grant of an interest in land

• at least one of the parties is a small business (employs less than 20 people)

• the upfront price payable under the contract is no more than $300,000 or $1 million if the contract is for more than 12 months

Under the new law, a contract’s terms may be considered unfair if:

• terms enable one party (but not another) to avoid or limit their obligations

• terms enable one party (but not another) to terminate the contract

• terms penalise one party (but not another) for breaching or terminating the contract

• terms enable one party (but not another) to vary the terms of the contract.

From 12 November 2016, small businesses will have a higher level of protection so business owners should carefully review all terms of any contracts they enter into. If you believe the terms of a standard form contract are unfair, ask the other party to remove the term or amend it so it is no longer unfair. For those businesses drafting a standard form contract, be sure to carefully review your terms and, if in doubt, seek professional advice.

Recovering debt

Most businesses will need to recover debt at some stage. Adopting credit control practices and a debt recovery procedure can help prevent debt and promptly collect outstanding payments.

To minimise your risk of debt, it is a good idea to review the terms and conditions in your contract. A contract should specify what goods and services are being supplied, a time for payment and what happens if a payment is not made on time. The contract should also state your business’ process for faulty goods or services and the circumstances where the contract can be terminated.

Before starting a relationship with new customers, perform a thorough background check before offering credit and clearly outline your terms of trade. It is good practice to only release goods when payment has cleared.

There are many debt recovery methods for those collecting debt. Firstly, the collector must ensure it is necessary and reasonable to contact the debtor. It is reasonable to provide information to the debtor about their account, make a demand for payment, offer a flexible repayment arrangement, make arrangements for repayment of a debt and so forth.

When recovering debt, be mindful that debtors need to be treated with respect, fairness and courtesy. The Australian Competition and Consumer Commission (ACCC) considers it unreasonable to frighten, intimidate, demoralise, tire out or exhaust the debtor. Embarrassing the debtor in front of other people is also considered unreasonable.

If payment is overdue, firstly send a friendly reminder to the customer and agree on the next payment date. In the event that the customer misses the next payment or there has been no contact, send the customer an overdue payment reminder. A final notice can be sent is the customer fails to meet extended payment dates.

Issuing a letter of demand is the next step if payments are not received within the set time. A letter of demand advises the debtor of the outstanding balance, provides a timeframe for action and informs the debtor that further legal proceedings may commence if the debt is not paid. This is usually the final reminder letter before taking legal action.

Meeting your employee obligations

Employees are arguably a business’s greatest asset and are vital to its growth and prosperity. But to make the most of this valuable resource, employers must ensure that they fulfil their legal responsibilities and moral obligations as an employer.

To help avoid having a call from the Fair Work Ombudsman, here are a few points to consider:

National Employment Standards (NES)
The NES are a set of standards set forward by the Fair Work Act 2009 and acts as a guide that underpins modern awards, enterprise agreements and employment contracts. The ten NES include:

• Maximum weekly hours of work

• Requests for flexible working arrangements

• Unpaid parental leave and related entitlements

• Annual leave

• Personal / carer’s leave and compassionate leave

• Community service leave

• Long service leave

• Public holidays

• Notice of termination of employment and redundancy pay

• Ensuring you provide the Fair work information statement

Superannuation Guarantee
When it comes to superannuation, your obligations as an employer are simple. All employers must contribute 9.5 per cent superannuation on behalf of their employees on a quarterly basis. Super contributions must now be processed through a registered clearing house to ensure compulsory and voluntary contributions are allocated accordingly.

Entitlements
It is important that pay templates are setup immaculately so that all leave types accrue correctly from the moment you hire each employee. Allocating entitlements correctly from day one ensures that you will not find yourself in trouble down the track. Ideally, businesses may benefit from opening up a separate account so that money can be put aside for obligations.

New high income threshold

The Fair Work Commission has increased the high income threshold for unfair dismissals from $136,700 to $138,900 per annum, with effect from 1 July 2016.

Under the Fair Work Act 2009, employees who exceed earnings above the high income threshold are not entitled to make an unfair dismissal claim against their employer, unless they are covered by an award or enterprise agreement.

The Fair Work Act 2009 deems an employee’s annual rate of earnings as employee wages, any amounts applied or dealt with on the employee’s behalf, such as salary sacrificing, and the agreed value of any non-monetary benefits i.e. a car, mobile phone, laptop, etc.

Reimbursements, superannuation contributions and payments which cannot be determined in advance, such as overtime and bonuses, are not considered when calculating the high income threshold. Employees are eligible to claim for unfair dismissal if they have completed the minimum employment period of:

• 12 months – where the employer employs fewer than 15 people, or

• 6 months – where the employer employs more than 15 people.

When considering an employee’s dismissal, employers need to be aware of the new threshold and whether a modern award or enterprise agreement applies to an employee. Small business owners must comply with the Small Business Fair Dismissal Code to ensure they have grounds to object an unfair dismissal application, in the case where a matter goes to a hearing.

Intellectual property law basics

While intellectual property can be a valuable business asset for business owners, it must be legally protected if a business owner wants to increase the value of their business.

Intellectual property can add further value to a business when it is sold. Intellectual property is the collection of ideas and creations of your mind or intellect such as trademarks, logos, concepts, designs, computer programs and so on. Most businesses will have some form of intellectual property that derives commercial value.

There are several types of legal ownership available depending on the nature of the intellectual property. The most commonly used types are trademarks, patents, design rights, domain names and copyright.

Trademarks
A trademark is a right granted to a sign or device used by a business to distinguish its goods and services from other businesses. They can take the form of a letter, number, word, phrase, sound, smell, shape, logo or picture.

Although it is not compulsory to register a trademark, registering provides exclusive rights to use the trademark across Australia for commercial purposes and assign, transfer or sell the rights to the trademark to another business.

Trademarks can protect businesses against imitation since they can use the trademark to identify with a particular product or service. However, owners should be aware that even though trademarks offer a greater degree of protection, trademark breaches are not enforced by the Trademark authority; rather they must be pursued by the trademark holder.

Design rights
A design can refer to the features of a shape, configuration or pattern that gives a product its unique appearance. Examples of a design include a logo, branding, packaging and so on. A registered design gives the owner exclusive rights to commercially use, sell or licence it.

Patents
A patent is a right granted for any device, substance, method or process which is new, innovative and useful. If you have developed a new product or process, you may consider applying for a patent.

There are two types of patents in Australia; the “standard” patent provides long-term protection for 20 years or more and the “innovation” patent lasts for up to eight years and applies to innovations that would not qualify for a standard patent.

Patents only provide protection within Australia. However, you can make a separate application in each country or file a single international application and select the countries in which you wish for protection.

If you are considering applying for a patent be wary not to disclose or promote your idea to anyone without first applying for a patent, otherwise you may risk your chances of registration.

Copyright
Copyright is a free and automatic legal right applied to any original work such as art, literature, music, films and so forth. Copyrights do not have to be registered for ownership. You cannot copyright ideas, the works must be tangible.

Domain names
A domain name is your website address on the internet. It helps to form your business’s identity and allows your customers to find your business online. To register a domain name it must be unique and not already registered as a business name or company, or a registered or pending trademark.