Managing Through COVID-19 Crisis: IR Reform And Leadership Challenges

Published October 20, 2020 Views: 5


In today’s session of Friday’s With Ed, topics covered included IR reform in Australia, leadership challenges and self-management, managing and communicating with employees in the workplace.


  • Managing Through COVID-19 Crisis: IR Reform And Leadership Challenges

    Ed: Hi, guys. It’s Ed here on Friday, just tuning in from the office. Once you might say. That’s certainly what everyone behind the screen is saying here that, good of you to turn out to work, Ed, for once. I’ve had a couple of weeks doing this from home but I’m back and raring to go in the office this week. And we’ve got some interesting things to go through today.

    This is the structure that I’m going to adopt the items that I’m gonna go through. The first is I’m gonna talk about IR reform in Australia. There’s more and more murmurings in the press about what’s gonna happen with any IR changes. I’ve been a bit of a naysayer saying nothing is gonna happen. And I’m gonna say a bit more of that today.

    The second thing is, you may have read in the paper about a decision that went against Qantas relating to JobKeeper, the court decision that Qantas lost. It suggested that that might be relevant to all businesses. And I just want to talk a bit about that, in case you’re worrying about that.

    Third, one, just briefly. New Zealand election coming up. So I think it’s tomorrow, isn’t it? So I’m no political expert. Looks like a pretty foregone conclusion from what I can work out that all being done in a much better spirit than the one over in the U.S. at the moment. And I’ll just talk a bit about IR platforms over there and what’s happening.

    Finally, I’m gonna swerve a bit away from IR Employment Relations. I’m gonna talk just a little bit about the concept of lockdown and small business and what that means for us. And then also how that’s translating into my own COVID planning here, what we’re doing as a business, the decisions that I’m going through at the moment which may resonate with you as to what you’re trying to do in your businesses.

    So let’s get cracking, IR updates. So I’ve been saying all along that this was all a bit of an exercise in pointless futility. I think that putting a load of people in the room, many of whom don’t really understand the true issues relating to IR, particularly as they relate to the majority of employers in Australia, which are you guys, small businesses.

    You’ve got a group of people arguing about things like enterprise agreements in a room that seemed to get heated at stages. And now it’s full of leaks and this what was meant to be this confidential process. But everyone’s coming out in the press saying that there will or won’t be agreements on various things.

    The net result of it is I don’t expect to see much change coming out. I don’t think… And I think in fairness to Christian Porter and the government, I think their early optimism that somehow we’re on some kind of wave of goodwill in the crisis, given a lot of the short-term temporary measures that were put in place, that that wave was gonna transition, or they were gonna ride it all the way, testing my surfing knowledge here. But they were gonna ride that wave all the way into the shore, really to actually push through some IIR change that no one had ever been able to affect before.

    Such the distinct polarized views in Australia are about things like wages, such fundamental things to the employment relationship. So there hasn’t been much sense that there’s been much agreed. I mean, most we saw this week was a concession by the ACTU and you heard me say this here before as well. I’m not quite sure why their voice is so loud. I think they represent less than 10% of private-sector workers. They’ll represent even less than 10% in small business. Small businesses are rarely unionized.

    Some industries are but very few small businesses are. One of the hot topics has been the concept of wage theft which we’re seen creep in in various states into law. And there was a concession by the ACTU that wage theft would not be used as a blanket terminology or it’s not their intention for it be used as a blanket terminology for every form of underpayment, which I’m amazed it’s something that they actually have to say out loud with a straight face. The idea that every time someone underpays in the most complex wage system in the world, that they would be decried as being a thief and the ACTU has stepped back from their initial sort of bombastic approach of saying that everyone underpays wages is a thief.

    I think that you know, hopefully, that’s just dose of reality that they’re realizing. Because in the same week this week, the Fair Work Ombudsman has put out its annual report, which, again, shows lots of scary numbers about how many of us are getting sued for various Employment Relations issues. And they noted in there, for example, that they recovered over $120 million in underpaid wages this year, $120 million. It’s a huge sum of money. Now, if it is right that we as employers are a bunch of thieves, then we’re probably the most successful thieves in Australia. I don’t think there’s many people running around doing $120 million of theft, let alone the ones that got away with it this year.

    The reality is that there is such a huge degree of underpayment because the system’s just far too confusing. And what we should be doing is clubbing together and helping understand that it is in everyone’s interest to have fundamentally a simple system whereby employers can pay their employees the right amount of money.
    There is no more fundamental principle in the workplace in this that if someone engages to provide their time and their effort to you as an employee, that you obviously in return, pay them for that, and you pay them the right amount. I would never suggest anything but that. But the fact that that doesn’t happen in Australia, and much more so than any other country in the OECD. Australians get that wrong, not because Australians are worse than everyone else at maths, I don’t think. Tell me if you think I’m wrong on that, but because their system, the system here is just so bloody complex.

    So anyway, it looks like this whole sort of very headline-grabbing narrative that wage theft is going to die down slightly, which is good. There’s some talk about coming out of these groups that there’s going to be government incentives to use software to work out your wages so don’t get them wrong so often. That for me is just a massive statement of the nativity of the people that have been in that room. That’s sort of the equivalent of a board of directors sitting there and trying to claim they know actually what’s going on at grassroots level in a big business. I mean, the people that have said that obviously have no sense at all as to how payroll works and some sort of presumption that we’re not already sitting there using calculators to work out how much wages should be paid. There is no such thing as a mythical piece of software that will solve how much you pay your staff.

    There are a couple of companies out there that will do award interpretation for a narrow amount awards. But fundamentally, what every piece of software that’s out there needs, everything needs, in terms of wages is a human interpretation of what your employee does for you, and therefore, what category they should be under the relevant award. What is the relevant award, is another question I have to answer. And you need to do a calculation of that. Now, whether it’s software, a spreadsheet, or a calculator, they can only help you do that calculation once you’ve done the human inputs. And the errors here, often come in the human inputs unfortunately.

    So they seem to have sort of feel like they’ve done their day’s work by just announcing that the government was gonna invest in software. Software seems to be the answer to every business problem in the world at the moment. But in my experience, software doesn’t solve anything. People solve things by working out what the problem was, breaking it down, coming up with a solution, and then sometimes use software to help in that solution.

    But I think the government’s going to, unfortunately, either do nothing or look a bit silly in what it tries to do following these IR updates. So that’s the stuff there, much to do about nothing, basically. Then on to the Qantas decision. So you might have read about this. It’s one of a number of things that Qantas have been getting a kicking for. And I have to say, I don’t think anyone that runs a business couldn’t feel some sympathy at the moment for Qantas to be… It’s a reminder to us all, I think, that sometimes as small business owners, you can feel like you just don’t have the clout that big businesses must have to get things done. And they always seem to have these friends in corridors of power that sort of make everything easier for them whilst small businesses are slaving away the hard way.

    I think the crisis if anything has shown us that actually big businesses don’t have that much clout either. So, Alan Joyce is probably wondering what he did wrong and who he forgot send a Christmas card to in terms of the behavior of a lot of the state politicians in ruining his domestic airline business when in plenty of other countries around the world, airlines are now back in the air in various different ways. And then on international basis, there is now murmurings and the language in the recent budget suggested that our borders are gonna be closed for another year, meaning that there’ll be very limited Qantas flying during that time. So I feel a bit sorry for Qantas. I feel even more sorry for them because they’ve just had another kicking in court. It seems whatever they do they get kicked for their industrial relations stuff.

    And in this case, what happened was this is, is that they have employees both paid fortnightly, some paid monthly. And broadly, what was happening was this, is that where employees were working less than the $1,500 JobKeeper wage condition in any given fortnight or period, Qantas was allocating, sometimes when they had earned over that $1,500 amount in another period, they were allocating the overs to the unders periods, so that they essentially were paying them the 1,500 bucks and not more in one fortnight and then having to top up in another fortnight. Now they were…it was found that they weren’t allowed to do that. If you look at it from…if you actually stand back from it, and just say, look, the objective of JobKeeper was to keep jobs. I don’t think that’s particularly controversial, making that statement given that’s what it’s called. And the idea of keeping jobs obviously is not for employers just to act as a bank in handing over money from the government to their employees. The idea was to support and ultimately subsidize the income of those employees so that their jobs could be kept, and that the employers could carry on employing them. So what Qantas we’re definitely not doing was taking money from the employees, the employees were at very least getting paid the money for what they had earned.

    What Qantas were doing was avoiding what they perceived to be an unfair situation where they were paying out JobKeeper to an employee in excess of what they had actually earned in one fortnight and then having to pay wages over and above the $1,500 in another fortnight. So in essence, they were saying, look, it doesn’t seem right that we’re paying out this extra money. We’re not being subsidized at all, and the employee is actually getting more money. So they interpreted the JobKeeper rules as saying, “Isn’t it right that the employee gets what they were intended to get by way of what they’re earning?” And actually, Qantas gets some financial support to pay those wages in what are plainly difficult times for the airline.

    And the court amazingly found that that wasn’t right. And in fact, just because the employees are doing better off than they should be by the hours that they worked is not for Qantas to get the benefit of the subsidy, the employee must keep it. So they’re appealing that decision.

    There’s some talk about how that will affect lots of other businesses. I don’t see it, personally. Shout out now if you’re a business that’s tried to reallocate income to different wage periods to try and flatten out how much you pay your employees. But if there’s a criticism of Qantas, it does feel a bit sort of artificially constructed. They can apparently do it under their enterprise agreement. But I don’t, in my experience, see many small businesses shifting around payroll dates and things like that on that basis. But tell me if you’re seeing any practical problems on that basis. I’d love to see if I can answer them.

    Okay. Quickie on New Zealand. So, New Zealand’s got its election tomorrow. I’m feeling like putting cats amongst pigeons here today. So I think that, as I said earlier, that it looks like it’s gonna be a shoe-in for Jacinda to get in there for another term. And you’ve heard me say on here before that I’m full of regard for her as a leader. Nothing to do with her policy or politics. I just think that as a leader she carries herself very well and I admire her for that. But it does seem to me that, you know, another term there will probably, and I say this as a business owner in New Zealand, that New Zealand seems to be heading in a fairly consistent direction to becoming the sort of Norway of the South Pacific in that it’s increasingly having these socialist laden policies which make it quite difficult to employ people over there.

    And again, I say this from experience, the industrial relations framework in New Zealand aside from the wages which is far more complex over here in Australia, but actually managing people in New Zealand is very, very difficult. And it’s only gonna get harder I think. There’s also other things that seem to be done in a very liberal verging on socialist view of the world like… They’re about to have a referendum on cannabis use, which I’m told by people over there, they think will end up with the legalization of cannabis.

    Now, I don’t hold a particularly strong view on that either way on a personal level, but I would say this, as an employer and as someone that helps employers, it will cause problems in the workplace in that suddenly you will have additional cost and regulatory needs to check that people coming in working in your workplace, particularly those handling machinery and things like that need to have drug tests and things like that.

    So there are some problems that flow from those sorts of things. Problems and red tape, and policy and cost. None of those things add to entrepreneurship and ultimately having people wanting to get into business and create jobs. So it’ll be interesting to see what happens, both in that narrow policy issue, but also as New Zealand moves further and further into some of the concepts it has in its society at the moment, which seem to me to be pushing against encouraging entrepreneurship and job creation.

    Very interestingly, for example, I can say that as a business with business in New Zealand and in Australia, notwithstanding New Zealand’s arguably more successful dealing with COVID-19, I think the economic impacts in New Zealand for what we can see as a business are just as big as what we’re seeing in Australia. They seem to be willing to accept that impact, notwithstanding the fact that the crisis never got as bad over there as it did here.

    So there’s a bit on New Zealand. I wanted to talk briefly about an article that I read. I’m still a bit too tied to my pommy roots. And most evenings I’ll read a couple of English newspapers and see what’s going on over there. And it seems to be, whether it’s just the papers I read, I’m not sure, but to be…I think the technical term is a complete shit show in the UK at the moment in the way that people seem very confused about what their lockdowns mean, how they’re gonna behave, and so on.

    And I have to say, it does, having just given New Zealand a kick in how frustrating it can be to do business there sometimes, I am pleased that relative to the UK, things just seem so much more ordered here and in New Zealand. And, again, going back to the qualities of Jacinda Ardernas a leader, her communication through the crisis has been excellent. And whether or not you agree with how she’s locked down the country at certain stages and so on, she’s been very clear about what needed to be done and executed on it compared to the confused messages they’re getting in the UK where you’ve got traffic lights, tiering, local lockdowns. They’ve stopped using the term lockdown now because that seems to have a negative connotation. So they’re talking about circuit breakers and all sorts of things go on. And it is utter confusion over there.

    What is clear over there, and I’ve certainly found this in conversations with friends and colleagues over there, that I think that there’s a sort of…there’s quite a different view about lockdown depending on where you sit in probably in the workplace as much as anything. So what I see is that business owners and those that are having their businesses impacted by the crisis tend to be very anti-lockdown and want to get back to work. And they see the balance of health and economic success as being leaning towards economic.

    We then have a big, chunky group of let’s say workers. I loath to use the term but the middle-class workers, white-collar workers, a lot of whom are still very pro lockdown, very pro the idea of not going back into the workplace, very pro the idea of health being absolutely paramount, and it being an offensive thing to suggest that should ever be balanced against the economy essentially. And then you get perhaps blue-collar work, where people have really found that their jobs have been affected by the crisis in the same way that business owners have been affected and they seem to be anti-lockdown as well. People that perhaps you know, say work in restaurant hospitality have lost their jobs, they’re the ones that are saying, “Okay, guys, we just really need to get back to work because I can’t pay my mortgage.”

    I read this article in the UK Telegraph. I think we’re gonna post the link up here on the stream, and it was entitled this. It said, “Wealthy Supporters of a Second Lockdown Ignore the Extreme Hardship This Would Cause.” I’m going to read out a little bit of it. I think it speaks to us as those that are trying to run businesses through this in the fact that it just…wherever you’re based at the moment, Victoria, obviously being the standout for us locally in terms of the impact that we’re suffering from this, but I just don’t think that people really understood just how much impact is going on.

    I don’t think that as a country, either here or New Zealand, we’ve got a real idea yet as to what’s happened to the economy in that, what you’ve still got is a lot of people as I say, that are pro lockdown. So I’m just gonna read a little bit out from this article that said this, that there are various wealthy supporters of a second national lockdown in the UK. I can’t think of a single reason why there wouldn’t be. None of them is likely to lose their jobs, let alone their homes in the next 12 months. No matter how many people die from COVID-19 in the coming weeks, they’ll be able to claim that the number would have been smaller if a second lockdown had taken place. So long as the public focuses solely on COVID-19 related outcomes, and ignores everything else, the compassionate, high status, virtue signaling opinion is to support lockdown.

    And that seems to me to be that, if you like an argument that has been lost. And I don’t know how the business lobby and how all of those workers that are losing their job and not able to pay their mortgage didn’t coordinate better to tell the story as to the impact that is now being suffered. And instead, this middle ground of people that are still very pro lockdown seem to want that debate. This idea that the health crisis is bigger than the economic crisis, on numbers seems to be farcical to be honest. But numbers just don’t seem to have won the day in the storytelling around this.
    It says that a bit later down. It says, “Remember when lockdown was a last resort to prevent hospitals being overrun.” That was the reason we were all given at the start. Protecting the health service was the only reason given when, in the UK, Boris Johnson appeared on television in March. Most of us signed up to that. But since then…” and it goes on to explain everything that’s been done. But notwithstanding the fact that we’re definitely not in a position in Victoria, where the health service is anywhere near overrun, nor is it suggested that that would happen if a lockdown was stopped.

    We’re gonna see this weekend that the announcement, I suspect that there’s gonna be no acceleration of the move out of lockdown. So none of that goes to suggest that I’m totally callous and I don’t care about loss of life and things like that. But I just do, I worry in all sorts of respects, I worry as a business owner, I worry for the long-term livelihoods of the people that are pro lockdown even because I think that they will start to lose their jobs over the coming period. They just haven’t seen it yet.

    And I worry for the education of children, and things like that. I worry for a generation of children as to how the hell they’re gonna get jobs over the coming years. So none of the worrying though is I’m expressing there is thinking. It’s not my job contrary to me immersing myself in these articles to be a COVID-19 expert. What I do have to do, and this is just to finish on this before we move on to questions is to execute a “why, how, what” at Employsure, a vision, a strategy, a plan as to how we’re going to get through the crisis.

    And you’ve heard me say it here before. But we do that at Employsure by saying, “Look, our mission for this crisis is to achieve business success throughout the crisis and beyond. How are we doing that? We consistently prepare for the worst.” So you’ve already heard me saying that I don’t think that we’re gonna see much relief in Victoria this weekend. We are preparing as a business to carry on with the status quo that we currently have in Victoria, which means our office there is shut at the moment, for example.

    We’re also preparing for business in preparing for the worst that as soon as we’re seeing some growth in cases New South Wales, I don’t know where they’re gonna go, but we’re preparing as though things are gonna get bad here again, as well. And by that focus of preparation, we enable ourselves to be, I suppose, as we have been so far, consistently in a better position than we have prepared for, which is an easier way to respond to the crisis.

    And what that has meant is this is that right now I’ve got quite a weird phase in a way and that we came into the crisis, and it was intense and all-consuming. We seem to think that we were coming out of it. I remember saying on here and to our staff internally that we’re definitely further out of the woods than we are in, thinking that we’re closer to the end at the beginning of the crisis, and then Victoria happened, and then the second lockdown in New Zealand happened and so on. And it felt like we were back at the bottom of the ocean again and we were not coming up for air.

    And again, it feels like we’re getting closer and closer to the surface. New Zealand lockdowns gone back to the position we were in. On Monday, our Auckland office will be back to normal. There’s no social distancing in those offices and so forth. Victoria whilst still in lockdown, we hope, even if it’s not this weekend, we’ll soon be out of it. New South Wales. I was just walking out of the gym I go to this morning and the social distancing sign was starting to peel off the wall, and it feels like everyone’s sort of slightly moving on from it.

    Yet at the same time, we’ve got a potentially in there another set of cases coming through. And we saw in Victoria how quickly things can change. I think we’ve all got such a short memory span for what’s occurring that you’ve really got to remind yourself to continue to prepare for the worst. So you might remember that part of our preparing for the worst plan what we do day-to-day is we have a crisis management meeting here at 8:30 every morning. And we were hemming and hawing this week about maybe how we should stop that now and we just need to move on to a new normal.

    Quite often the meetings are brief. There’s not that much to talk about day-to-day. And I’ve said, “Look, hang on not yet. Let’s carry on just at least until the end of this month, and we’ll review. Because I can almost guarantee the moment we take that out of the planning cycle, our crisis management cycle, we’re going to end up with an uptick in things and we’re gonna be behind the game. We need to be sitting here preparing for the worst. And if that means that we’re having short meetings, there’s not much to say, then we’re probably doing our jobs.”

    So I’m trying at the moment within Employsure to really achieve a consistent discipline in keeping up that form of crisis management. And I don’t know that I’m right in doing that. And it may be that my colleagues here are getting fed up with having regular meetings that don’t say much. But I’d much rather prepare in that vein than I would lose control of things by pretending everything’s back to normal just because the social distancing signs are peeling off the walls.

    So the message for me as to what I’m doing is just when you think you’re starting to drift, that’s when you increase your discipline in your crisis management. I was having a chat with one of you guys that watches this live stream on email over the course of the week. And she quite bluntly said to me, she said, “I see that less people are watching these days.” [inaudible 00:27:47] Funny enough, I think that’s a good thing.

    It’s a good thing in the sense that it means people are less craving need and perhaps have less confusion. That’s a positive thing for business at large, which is a positive thing for my business. And that it means less of you are gonna be ringing and saying that, unfortunately, you’re struggling and so forth. And that’s what I’m seeing, which is good news. But at the same time, I don’t think it changes the need for me to do what I want to do with this, which is to continue to communicate through the crisis and to help you and myself through it.

    And to that end, I suppose the proper way of looking at this is that you end up being a bit more like the orchestra on the Titanic, you know, sort of being…carry on playing as the ship’s going under the waves. So even if less of you are watching, I’ll be here until you tell me to bugger off making sure we’re supporting you through this. So that’s it for me for the moment. We have Stewie here to read questions this week rather than my very amateurish version of [inaudible 00:28:56]. You probably didn’t even bother to watch last week, Stewie, but I did pretend stew voice from the side.

    Stewie: I did. I did watch and it was sterling effort.

    Ed: Thank you. Thank you. It wasn’t as effective but I thought I’d try it out.

    Stewie: We’ll see.

    Ed: A bit of stew to the mix.

    Stewie: Ed, there’s a couple of comments to start it off today from both around daylight saving. Margaret says, “Good day from North Queensland. I remember that you’re on funny time.” And Elena says, “Nearly missed you because of daylight savings.”

    Ed: There we go. Yeah, it’s funny isn’t it? I travel to Queensland so much normally that I just haven’t…because I’m not going there at the moment I’m sort of tweaked about that. So I apologize for the flux change, out of my control.

    Stewie: From Alicia, “Hi, Ed. Is asking an employee to work at one of my other store locations a reasonable management instruction? What can I do if they refuse?”

    Ed: Hi Alicia. So a couple of things. If we answer that as though you’re not and never were a JobKeeper business, well, Alicia, if you’re the Alicia I’ve spoke to before, I think you were. But let’s assume for a moment that you’re not, it will depend a bit on what the contract of employment and/or awards says about location of work. But in what you’ve asked, there you said, “Can I ask an employee? Would that be a reasonable management instruction?”

    So you can ask anything, frankly. And if the employee agrees to it, great. And part of the challenge, therefore, is just asking it in the right way so they’re more likely to agree to it. That’s a sort of HR problem rather than a technical or a communication problem, rather than a technical one. Can you force them to do it? I think is what you’re really asking even if they don’t want to.

    So if you’re not and never were a JobKeeper, and the contract of employment doesn’t have that level of flexibility then you can’t force them, therefore you can’t say that’s a reasonable management instruction. But if you are a JobKeeper or you’re what’s known as a legacy JobKeeper business, then there are rules relating to where and when employees work, different rules relating to how much notice you need to give them to make those changes, and so forth. So I’d urge you to reach out to us to talk about your specifics if that’s an important issue they need to work out.

    Stewie: And, Ed this one from Edgy is getting a bit of engagement. Edgy says, “Talking about JobKeeper, any ideas about staff members who are doing their job during JobKeeper on minimum hours and essentially getting free money from the JobKeeper top-up are now doing the same job and taking more time to do it to get paid more. One could argue that they can do their job on the hours they were doing during JobKeeper, and now they are possibly committing time theft by doing the same job but taking longer to do it since they don’t have the free money coming in.

    Ed: Yep. Hi, Edgy. Time theft, I like that. Employers are getting accused of wage theft which… I’m not promoting workplace harmony, am I here? Suggesting employers should fight back talking about time theft. I feel like I have time theft sometimes I’ve got my weekly meetings on Friday afternoons with my Head of Digital Marketing who’s looking at me here. I’m gonna accuse her of time theft today.

    That’s a bad joke. Can you accuse… So, the reality is this is Edgy, what you’ve got is a performance management problem. So if you know that that person is able to do the job in a certain number of hours, and that number of hours is less than the amount of hours that would have equated to the $1,500, i.e. they were piling through their work so that they could bugger off early and then they’d still get 1,500 bucks, you now know as a consequence that they’re able to do it in that time. And you’re perfectly entitled to performance manage people.

    There’s no legal right for someone just to drift at work. So you need to have a look. It’s obviously hard without knowing the specifics of the job that they’re doing that if people are taking longer to do it, then they might reasonably be able to, then you need to performance manage them. And it’s not really a JobKeeper question. Therefore it’s an HR question. ER question, how do I performance manage someone? How do I engage them so that they work actually at optimum productivity?

    Stewie: This one from Allison, another JobKeeper question. We have two employees who are ineligible for JobKeeper as they are casual and haven’t been with us for 12 months. Are we able to change their status to permanent part-time and start to claim JobKeeper for them?

    Ed: No, because by the time you change it they won’t have been employed on a permanent basis on the date at which they needed to be for eligibility.

    Stewie: Ed, this one from Christian. “Ed, I have an underperforming employee. They’re aware of the situation and I’m trying to constructively improve their performance but they really need constant oversight and micromanagement. They’re working from home and I’m busy too. Any advice? Can I insist that they be office-based to make it easier?”

    Ed: Words like “insist” are always a bit of a flag in Employment Relations. But certainly, if you’ve got someone that is working from home and they are not performing, the way in which I interpret the rules in, I’m gonna assume you’re not in Victoria at the moment, is that people if they can work from home, they shouldn’t work from home if it is reasonable for them to do so. In that reasonableness that you get the opportunity to say, “Well, hang on a second if their proper place of work is in an office, in a workplace, and it’s because of the crisis, they’re at home, then if they’re not performing well, and the alternative is that they’re gonna carry on getting performance managed, and potentially even, therefore, getting dismissed, it seems to me to be reasonable to bring them into the workplace to give them the proper training and oversight. And in fact, that would be something I would love to do before you say escalated the process towards any sort of termination process. Because you should really try all of those things to try and get them to perform in their job.

    The other things to watch out for, though, and this is perhaps the more cynical end of management is that the way in which the law is set up is that you need to consider when someone gains the right for unfair dismissal claims. Therefore, consider whether you need to look at if they’re not performing, look at cutting losses essentially, and moving someone on before they accrue the right to sue you for unfair dismissal. It’s obviously easier to terminate someone’s employment before they have that right, and sometimes you just need to make an honest decision with yourself. Is it worth incurring the risk of that sort of claim against bringing the employment to an end before they accrue the right to sue you for that?

    Stewie: Ed, this one from Liz. Apropos of you mentioning Qantas a little earlier. She says, “Isn’t the Qantas time shifting a similar concept to offering time in lieu?”

    Ed: The way Qantas did it is it similar to offering time in lieu? I don’t know. I’d need to think about that, Liz, to be honest. So someone has done over time and you say, we are gonna give you time in lieu. You’ve worked the overtime in let’s say fortnight one, and then in fortnight two, you have time off in lieu. Yeah, there is a similarity. I think that you’re right. That is a risk that then you say “Okay, I’m not gonna pay you in fortnight one, anything but the $1,500 that you actually earned. And then the extra hours, I’m gonna put into fortnight number two as time off in lieu.”

    But of course, if they weren’t otherwise gonna work in that fortnight. So it’s hard to schedule them for time off in lieu in a period they weren’t otherwise gonna work but there are similarities. Makes me realize that you will need to look at specific cases for people maybe like yours, Liz, to work out whether you’ve got a specific risk if that is a problem for you.

    Stewie: Ed, this from Gary. He says, “Hi, Ed. How does long service leave the crew for staff that are one, employed only on the hours that JobKeeper will cover, and two, working hours above those covered?”

    Ed: So long service leave, it accrues based upon the hours that have worked, not based upon the hours that might have otherwise been worked under JobKeeper. I think that answers that. So you look at the hours that have been worked.

    Stewie: Okay. And a short one, Craig. “Any updates on the casual conversion case?”

    Ed: No, no updates that I’m aware of. I think that it’s proceeding to an appeal. The wheels of justice move pretty slowly. So I don’t expect any updates imminently but we’ll let you know as soon as we hear anything.

    Stewie: Okay. This is from Sam. He says, “We stood down some staff and are looking to bring them back. However, we did keep some stuff on throughout COVID. I’m worried about the cultural impact of moving back to our normal workplace that is potential rifts between the staff who got stood down versus the staff we got to keep working, and potential tensions with us as the owners. Plus, culturally speaking, we are not the same business we were six months ago. Do you have any thoughts on this?”

    Ed: Yeah, I do. I have some thoughts on that. I have two groups of thoughts. The first thought is relating to the cultural, I suppose. The most general comment I can make to any cultural issue is that the best way to deal with cultural issues that you are worrying might occur is not by just obviously sitting and stewing on them, but to start expressing them and communicating them. Those have led best through the crisis, I think have been those that have been honest and open. Used the three C’s of communication, clear, consistent, and concise. So speak to your staff about that. This is what we’re doing. So and so has been away. So and so has been stood down. So and so worked through. This is why. This is what we’re going to do about it. Maybe have a meeting, if you’re really worried about the air being murky. Have a sort of clear the air meeting. Invite people in to have a chat about any concerns they might have about coming back into the workplace.

    And that probably gives you a chance to air what it is that you think makes you a different business now to what you were six months ago. So that’s my general recommendation around those cultural issues if you like. As to the question of difference, I suppose asking and checking to see whether that difference actually means you don’t need all of the people that you’re bringing into your workplace. Has your business reshaped? Are your staff requirements different to what there were six months ago? In which case, you need to be starting to think about reorganizing, restructuring your workforce in order to meet the needs of the business, which might result in things like redundancies if that’s necessary. But you should be thinking about that sooner rather than later. But I think that’s more fair than bringing people back into the workplace, just because they used to have jobs and then realizing that you actually need to dismiss them a few weeks later. So just start doing that critical thinking about who you need in the workplace.

    Steve: Ed, this one from Russell, apropos of the potential cannabis legislation in New Zealand. “If cannabis gets legalized, who pays for the drug tests at work?”

    Ed: First of all, I hope that’s not Russell, our head of sales in New Zealand. We’re all about legalizing cannabis. I’ll take that up with you privately, Russell, if that it. Who pays for the drug tests? It would likely be the employer. A lot of workplaces will have mandatory drug testing already, particularly those high-risk workplaces with heavy machinery. So it wouldn’t really be much of a change there. But it may be that in other industries, which don’t have such stringent drug testing rules but might start to need them, it will typically be the employer. It’s less the payment to be honest, that’s the issue. It’s the access to the testing, making sure you have policies in place that enable you to actually do that so that you don’t end up with disputes about someone’s rights if you suggest that they needed a drug test.

    Stewie: Okay. Ed, this one from Lorraine, she says, “I’m planning to bring more staff back to our workplace but I have an employee who is refusing to catch public transport, and insisting that I either have to pay for her Uber or her parking. How can I approach this?”

    Ed: So again, I suppose it comes in two parts. I can give you a pretty blunt Employment Relations answer to that. But that’s not really…it doesn’t really solve your problem. The problem will get best solved by communication with that employee. Try and put yourself in their shoes. Why are they so worried about that, rather than simply saying, “Well, you know, trains and transport are open, and no one’s saying you’re not allowed to use it. So get on with it, or else.” You’re better off having a frank conversation and trying to be persuasive and understand what their problems are. Let’s say, for example, that they live in an area that has been a hotspot or is a hotspot and/or they have elderly relatives that live with them. There may be specific circumstances that you can help manage them through or you might recognize them. Say you know what? I understand why they are reluctant to do that. Maybe I will pay for their transport. But if you go through that process, and you can hand on heart say, look, I still think that it’s entirely reasonable to ask that employee to take public transport based upon the fact that ultimately the state is determining whether public transport should be open and it is open. And therefore, we think that it’s reasonable for them to come in. If they continuously refuse to come in, then you might get into a failure to follow a reasonable management instruction, which might result in disciplinary proceedings. But there’s a whole sequence there. Don’t rush to the end of it at the start.

    Stewie: This is from Judith. “We’re looking towards the Christmas and summer school holidays. It seems our staff haven’t asked for as much annual leave as they normally would by this point of the year. I’m starting to get nervous about carrying that leave financially. Can I force them to take holidays now?”

    Ed: Yeah, good question, Judith. I think a lot of businesses are suffering. I think we talked a couple of weeks ago about the fact that we’re seeing it here, other businesses are. You can only force them to the extent that you’re relevant awards and/or your contractual provisions enable you to go through a form of shutdown, including the most normal form of shutdown is around the Christmas period. Obviously, you need to evaluate that against your business needs, your operational needs during that period. But you can move forward to have a shutdown if you have the right to do so under the relevant instruments. If you don’t, then it becomes a matter of agreement. And you can’t typically force people to take leave.

    There’s also a communication element in that, which is if people are consistently not taking leave, you should be talking to them about their health and welfare, and encouraging them even if you can’t force them to take leave. Finally, I think it’s…we’re all gonna have to keep a bit of an eye on this over Christmas in that, if people are saying, “I’m not gonna take leave, but I’m not really gonna work either,” then you need to make sure that by now your systems and processes are in place to really understand what someone’s productivity is just to make sure that you’re not caught out by people bludging, I suppose.

    Stewie: Ed, this one from Naomi, she’s a client. “We have an employee that started in June that is currently doing over the 80-hour requirement for JobKeeper. However, the four weeks prior to first of July, they only did 20 hours due to border closure. This indicates that he is not eligible. Can we ask the ATO to allow him to be eligible for JobKeeper based on the current hours?

    Ed: Hi Naomi. I’d love to answer that but I’m unfortunately not going to because it’s probably a question that should go to your accountant, apparently.

    Stewie: From Ingrid. “Any update on the IIR reform working groups announced by Christian Porter some months ago?”

    Ed: Just the stuff I waffled on about earlier, which is much to do about nothing. Lots of noise and scrapping, fairly, unsurprisingly. But vis-a-vis small business. You’ve got COSBOA is speaking loudly about getting a Small Business Award, I don’t think anyone seems to be saying that that’s necessarily going to come into play, but that’s their position. But really, I don’t expect much to come out of it. It’s like putting cats and dogs in a confined space and expecting them to come out friends. I just don’t… Yeah, ultimately, you’re gonna get through these things with strong leadership instead of what they seem to be doing, which is expecting people suddenly work things out and get on.

    Stewie: And, Ed just a couple of comments to wrap it up for today.

    Ed: Sure.

    Stewie: This one from John. “Ed, my wife reckons she’s been under 35 for at least the last 15 years. Do you think I can get the new wage subsidy for her?”

    Ed: It’s a very good question. You or your wife might be pleased hear there was something in the media about how the opposition is saying that they’re not gonna approve the wage subsidy unless it’s opened up for older people. So we’ll see whether that’s actually what happens to it, but it’s got to be legislated. So tell your wife that regardless of her real age, currently, she’s probably not eligible until that”s been properly agreed in Parliament.

    Stewie: And finally, Ed, from Design Dental Group. “We just got a call from Daniel in Victoria, our Employsure contract.

    Ed: Great. That’s good, Design Dental Group. And you make me feel very self-conscious about my teeth. So maybe I need to come and see you while I’m in Victoria and get a checkup. Good. Thank you, everyone. I shall see you. Doing my orchestra impression on the Titanic next Friday. But please do tune in unless of course, you don’t need any help. In which case, good on you. So, see you then. Cheers, guys.

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